UNIVERSITY  OF  CALIFORNIA 
AT  LOS  ANGELES 


T 


THE   SCIENCE   OF  JURISPRUDENCE 


THE  MACMILLAN  COMPANY 

NEW  YORK   •    BOSTON   •    CHICAGO 
ATLANTA  •    SAN   FRANCISCO 

MACMILLAN  &  CO.,  LIMITED 

LONDON   •    BOMBAY   •    CALCUTTA 
MELBOURNE 

THE  MACMILLAN  CO.  OF  CANADA,  LTD. 

TORONTO 


THE 


SCIENCE  OF  JURISPRUDENCE 


A   TREATISE 

IN  WHICH  THE  GROWTH  OF  POSITIVE  LAW  IS  UNFOLDED 

BY  THE  HISTORICAL  METHOD  AND  ITS    ELEMENTS 

CLASSIFIED  AND  DEFINED  BY  THE  ANALYTICAL 


BY 

HANNIS   TAYLOR,   LL.D.  (EDIN.  AND  DUB.) 

AUTHOR  OF  "THE  ORIGIN  AND  GROWTH  OF  THE  ENGLISH  CONSTITUTION' 
"INTERNATIONAL  PUBLIC  LAW";  "JURISDICTION  AND  PROCEDURE  OF 
THE  SUPREME  COURT  OF  THE  UNITED  STATES."     FORMERLY  MIN- 
ISTER PLENIPOTENTIARY  OF  THE  UNITED  STATES  TO  SPAIN. 


"  The  Science  of  Jurisprudence  is  concerned  with  positive  laws, 
or  with  laws  strictly  so-called,  as  considered  without  regard  to 
their  goodness  or  badness."  —  AUSTIN. 

"  Adhibita  est  igitur  ars  quaedam  ertrinsecus  ex  alio  genere 
quodam ;  quod  sibi  totum  philosophi  adsumunt,  quae  rem  dis- 
solutam  divolsamque  conglutinaret  et  ratione  qnadam  con- 
stringeret."  — CICERO. 


Neto  If  ork 
THE   MACMILLAN   COMPANY 

1908 

All  righti  rttervtd 


e.o. 


COPYRIGHT,  1908, 
BY  THE  MACMILLAN  COMPANY. 


Set  up  and  electrotyped.    Published  September,  1908. 


NottaooU 

J.  8.  Cashing  Co.  —  Berwick  A  Smith  Co. 
Norwood,  Mass.,  U.S.A. 


CO 
OS 


Eo 

THE  RIGHT  HONORABLE    JAMES  BRYCE 

AND 

THOMAS  ERSKINE  HOLLAND,  K.C. 

MASTERS     OF     THE     SCIENCE     OF     JURISPRUDENCE 
THIS    BOOK    IS    INSCRIBED 


PREFACE 

THE  group  of  scholars  who  founded  something  more  than 
a  century  ago  the  science  now  known  as  Comparative  Phi- 
lology revolutionized  the  thought  of  the  world  not  so  much 
through  the  marvelous  revelations  of  that  science  as  by  the 
discovery  of  the  new  method  of  investigation  that  made 
such  revelations  possible.  Out  of  the  application  of  the  new 
method  to  fresh  subject-matters  have  since  arisen  Compara- 
tive Mythology,  Comparative  Politics,  and  Comparative  Law. 
By  the  aid  of  the  two  sciences  last  named  a  flood  of  light  has 
been  shed  upon  the  processes  through  which  the  aggregate, 
generally  known  as  government  and  law,  emerged  from  pro- 
gressive history  in  the  nations  that  have  made  the  deepest 
impress  upon  civilization. 

The  most  important  single  outcome  of  Comparative  Poli- 
tics —  which  may  be  called  the  science  of  state  building, 
the  science  of  constitutions  —  is  embodied  in  the  discovery 
that  the  only  two  conceptions  of  the  state  known  to  the 
ancient  and  modern  world  have  been  and  are  represented 
by  aggregations  or  federations  in  which  the  starting  point 
was  the  village  community.  (The  unit  of  state  organization, 
from  Ireland  to  Hindostan,  was  the  naturally  organized  asso- 
ciation of  kindred;  the  family  swelled  into  the  clan  which, 
in  a  settled  state,  assumed  the  form  of  the  village  community 
represented,  in  a  general  way,  by  the  7^05  of  Athens,  the 
gens  of  Rome,  the  mir  of  Russia,  the  clan  of  Ireland,  the 
mark  or  gemeinde  of  the  Teutonic  nations  which  appeared  in 
Britain  as  the  tun  or  township.  When  we  turn  to  the  Medi- 

vii 


viii  PREFACE 

terranean  world  in  which  the  Science  of  Politics  was  born, 
we  there  find  that  the  ancient  conception  of  the  state  as  the 
city-commonwealth  was  the  product  of  aggregations  in  which 
the  village  community  was  the  unit  or  starting  point.  In 
Greece  the  first  stage  in  the  aggregation  is  represented  by 
the  gathering  of  a  group  of  village  communities  or  clans  into 
a  brotherhood  (fyparpia) ;  the  second  by  the  gathering  of 
(pparptcu  into  a  tribe;  the  last  by  the  gathering  of  tribes 
into  a  city-state.  In  Italy  the  village  community  appears 
as  the  gens.  Out  of  the  union  of  gentes  arose  the  curia;  out 
of  the  union  of  curiae  arose  the  tribe;  out  of  the  union  of 
tribes  arose  the  city-state.  (It  was  upon  the  soil  of  Italy  that 
a  group  of  village  communities  grew  into  a  single  independ- 
ent city-state  that  centralized  within  its  walls  the  political 
power  of  the  world.  Out  of  the  settlements  made  by  the 
Teutonic  nations  upon  the  wreck  of  the  Roman  Empire  has 
gradually  arisen  the  modern  conception  of  the  state  as  a 
nation  occupying  a  definite  area  of  territory  with  fixed 
geographical  boundaries,  —  the  state  as  known  to  modern 
international  law.;  The  homogeneous  race  called  Teutonic 
was  broken  up  into  an  endless  number  of  political  communi- 
ties or  tribes  which  stood  to  each  other  in  a  state  of  complete 
political  isolation,  except  when  united  in  temporary  con- 
federacies. The  typical  Teutonic  tribe  —  the  civitas  of 
Caesar  and  Tacitus  —  represented  an  aggregation  of  hun- 
dreds; while  the  hundreds  represented  an  aggregation  of 
village  communities.  The  parallel  between  the  Teutonic, 
the  Greek,  and  the  Latin  tribe  seems  to  be  complete.  The 
7«>o5,  the  gens,  the  mark,  represent  the  same  thing,  the  vil- 
lage community;  while  the  <f>parpia,  the  curia,  the  hun- 
dred, seem  to  represent  the  same  thing,  a  group  or  union  of 
village  communities.  Out  of  the  aggregation  of  such  inde- 
terminate groups  or  hundreds  arose  the  tribe  itself.  But 
here  the  parallel  ceases.  In  the  Mediterranean  peninsulas 


PREFACE  ix 

the  resultant  of  a  union  of  tribes  was  the  city-state;  in 
Teutonic  lands  the  resultant  of  a  union  of  tribes  was  not  a 
city  at  all  but  a  nation.  When  we  turn  to  the  existing 
European  state  system,  built  up  in  the  main  out  of  the  frag- 
ments of  the  empire  of  Charles  the  Great,  we  there  find  that 
the  modern  conception  of  the  state  as  a  nation  is  the  product 
of  aggregations  in  which  the  village  community  is  the  unit 
or  starting  point.  The  typical  modern  state  in  Britain, 
known  as  England,  represents  an  aggregation  of  shires ;  each 
shire  an  aggregation  of  hundreds;  each  hundred  an  aggrega- 
tion of  village  communities  or  townships.  The  power  to 
subdue  and  settle  a  new  country,  and  then  to  build  up  a 
state  by  this  process  of  aggregation  constitutes  the  strength 
of  the  English  nation  as  a  colonizing  nation.  By  that  pro- 
cess, capable  under  favorable  geographical  conditions  of  un- 
limited expansion,  has  been  built  up  the  federal  republic  of 
the  United  States.  As  Tocqueville  has  expressed  it:  "In 
America  ...  it  may  be  said  that  the  township  was  organ- 
ized before  the  county,  the  county  before  the  State,  the 
State  before  the  Union."  After  thus  unfolding  the  origin 
and  growth  of  the  political  constitutions  of  states,  ancient 
and  modern,  Comparative  Politics  has  undertaken  to  classify 
and  label  such  constitutions  as  buildings  and  animals  are 
classified  and  labeled  by  those  to  whom  buildings  and  ani- 
mals are  objects  of  study.  Students  of  Comparative  Politics 
and  students  of  Comparative  Anatomy,  beginning  with  the 
incomplete  data  embodied  in  traces  and  survivals,  supply  the 
deficiencies  and  work  out  results  through  substantially  the 
same  process  of  reasoning. 

Not  until  the  history  of  the  outer  shells  or  constitutions  of 
states  had  been  thus  subjected  to  critical  examination  at 
the  hands  of  Comparative  Politics,  did  Comparative  Law 
undertake  to  unfold  the  history  of  such  bodies  of  interior 
or  private  law  as  have  existed  as  distinct  codes.  The  outcome 


x  PREFACE 

is  the  discovery  that  the  world  has  so  far  produced  only  five 
distinct  sj^stems  of  law:  (1)  the  Roman;  (2)  the  English; 
(3)  the  Muhammedan ;  (4)  the  Hindoo ;  (5)  the  Chinese.  An 
attempt  has  been  made  to  indicate  the  limits  of  the  several 
geographical  areas  to  which  each  is  confined.  By  that  sur- 
vey the  fact  is  established  that  about  nine  tenths  of  the 
civilized  world  is  now  dominated  by  Roman  and  English 
law,  in  not  very  unequal  proportions.  It  thus  appears  that 
the  student  of  the  Science  of  Jurisprudence,  as  defined  herein, 
is  directly  concerned  only  with  Roman  and  English  law,  from 
whose  histories  are  to  be  drawn  practically  the  entire  data 
with  which  he  has  to  deal.  For  that  reason,  in  the  central 
chapters  of  this  work,  entitled  respectively  "The  External 
History  of  Roman  Law"  and  "The  External  History  of 
English  Law,"  an  effort  has  been  made  to  outline,  as  pro- 
gressive and  unbroken  developments,  ^first,  the  growth  of  the 
code  that  grew  out  of  the  primitive  customs  of  the  great 
Italian  city;  second,  the  growth  of  the  code  that  grew  out 
of  the  primitive  customs  of  that  group  of  Teutonic  tribes 
which  founded  in  Britain  the  English  commonwealth.  When 
the  external  histories  of  these  two  world  codes  are  thus  un- 
folded, side  by  side,  the  coincidences,  the  likenesses  are 
striking  indeed.  Each  consisted  at  the  outset  of  a  body  of 
customary  law  which  became  rigid  and  unelastic  the  moment 
it  was  reduced  to  written  formulas.  Long  after  that  stage 
was  reached  each  state  grew  into  a  world  power  with  vast 
territorial  dependencies.  Thus  each  state  was  forced  so  to 
expand  its  meager  and  unelastic  code  of  archaic  law  as  to 
meet  the  manifold  and  ever  changing  conditions  of  the 
aftergrowth.  That  result  was  worked  out  in  each  by  iden- 
tically the  same  agencies  —  legal  fictions,  equity,  and  legis- 
lation. Each  state  as  it  advanced  manifested  its  conserva- 
tism by  promoting  law  reform  mainly  through  the  agency  of 
judge-made  law,  —  the  Roman  responsa  and  the  English 


PREFACE  xi 

case-law  system  presenting  parallel  processes  of  innovation 
in  existing  rules,  made  only  after  exhaustive  discussion  as 
to  particular  deficiencies  revealed  by  the  facts  of  individual 
cases.  As  old  institutions  became  obsolete  they  were,  as  a 
general  rule,  permitted  simply  to  die  out,  without  formal 
abrogation.  Thus  at  Rome  as  in  England  out  of  the  old  was 
slowly  evolved,  bit  by  bit,  the  new.  There  is,  however,  an 
utter  lack  of  similarity  between  the  two  world  systems  of 
positive  law  when  antiquity,  fullness,  and  philosophical  com- 
pleteness are  taken  into  account.  So  far  as  antiquity  is  con- 
cerned Roman  law,  after  a  thousand  years  of  historic  growth, 
had  passed  into  the  second  stage  of  codification  before  the 
Teutonic  conquest  and  settlement  of  Britain  was  fairly 
begun.  Ethelbert  had  ruled  the  men  of  Kent  only  some 
five  years  in  565,  when  Justinian  died.  And  yet  in  thinking 
of  any  possible  influence  of  Roman  forms  and  institutions  in 
England  prior  to  the  Norman  Conquest,  there  can  be  no 
question  of  Justinian's  Corpus  Juris,  which  was  as  such  still 
a  new  thing  in  the  Eastern  Empire  itself  at  the  time  of  Augus- 
tine's mission  to  Kent.  How  the  Teutonic  state  that  arose 
in  Britain,  known  as  England,  was  affected  in  later  times  by 
successive  infusions  of  Roman  law  will  be  indicated  hereafter. 
The  lost  text  of  Gaius,  which  has  shed  great  light  on  por- 
tions of  the  history  of  Roman  law  previously  most  obscure, 
was  discovered  at  Verona  in  1816  by  the  historian  Niebuhr, 
just  at  the  moment  when  the  founders  of  the  historical  school 
of  jurisprudence  were  beginning  to  assert  their  influence. 
Niebuhr  communicated  the  fact  to  Savigny,  who  pointed  to 
Gaius  as  the  real  author.  He,  as  well  as  his  immediate  fol- 
lowers, dealt  only  with  Roman  materials.  The  founder,  or 
rather  consolidator  of  the  historical  school,  applied  that 
method  only  in  a  very  limited  way  to  the  general  theory  of 
politics.  When  in  1803  Savigny  published  his  Das  Recht  des 
Besitzes,  or  the  right  of  possession,  jurists  perceived  that  the 


xii  PREFACE 

old  uncritical  study  of  Roman  law  was  at  an  end.  Instead 
of  considering  law  as  the  creation  of  the  will  of  individuals, 
Savigny  maintained  it  to  be  the  natural  outcome  of  the 
consciousness  of  the  people,  like  their  social  history  or  their 
language.  In  his  Geschichte  des  Romischen  Rechts,  the  first 
volume  of  which  appeared  in  1815,  is  embodied  an  emphatic 
protest  against  the  habit  of  viewing  the  law  of  a  nation  as  an 
arbitrary  creation,  not  connected  with  its  history  and  con- 
dition. In  his  famous  pamphlet  (Beruf  unserer  Zeif),  pub- 
lished the  year  before,  he  expressed  the  then  new  idea  that 
law  is  a  part  and  parcel  of  national  life.  Down  to  that  time 
comparative  investigation  of  archaic  legal  systems  had 
scarcely  been  undertaken  at  all,  certainly  not  on  any  con- 
siderable scale.  The  almost  unbroken  soil  of  that  rich  and 
inviting  field  was  to  be  turned  over  by  the  plow  of  one  who 
revealed  wonders.  Sir  Henry  Sumner  Maine,  whose  Ancient 
Law  appeared  in  1861,  said  in  his  preface  that  —  "The  chief 
object  of  the  following  pages  is  to  indicate  some  of  the  earliest 
ideas  of  mankind,  as  they  are  reflected  in  ancient  law,  and  to 
point  out  the  relation  of  those  ideas  to  modern  thought." 
In  the  masterly  demonstration  that  followed  he  showed  that 
legal  ideas  and  institutions  have  a  real  course  of  development 
as  much  as  the  genera  and  species  of  living  creatures;  that 
they  cannot  be  treated  as  mere  incidents  in  the  general  history 
of  the  societies  where  they  occur.  The  works  of  these  epoch- 
making  men,  the  one  German,  the  other  English,  have  re- 
sulted in  the  creation  of  what  may  be  called  the  natural 
history  of  law.  But  long  before  the  advent  of  Maine  the 
torch  lighted  in  Germany  by  the  historical  school  of  juris- 
prudence had  passed  into  England  by  the  hand  of  John 
Mitchell  Kemble.  He  was  the  real  path  breaker  into  the 
jungle  of  early  English  institutional  history.  To  him  be- 
longs the  imperishable  honor  of  being  the  first  to  bring  to 
light  the  most  valuable  of  the  early  records,  and  to  apply  to 


PREFACE  xiii 

their  interpretation  the  rich  results  of  German  research  into 
the  childhood  of  the  whole  Teutonic  race.  After  studying 
under  the  brothers  Grimm  at  Gothingen,  Kemble  was  the 
first  to  reject  every  suggestion  of  Roman  influence  at  the 
outset,  and  to  perceive  clearly  the  all-important  fact,  now 
generally  admitted,  that  the  national  life  of  the  English 
people,  both  natural  and  political,  began  with  the  coming  of 
the  Teutonic  invaders  who,  during  the  fifth  and  sixth  cen- 
turies, transferred  from  the  continent  into  Britain  their 
entire  scheme  of  barbaric  life.  The  historians  who  have 
enlarged  and  refined  upon  his  work  have  put  it  beyond  all 
question  that  the  German  element  is  the  paternal  element  in 
the  English  system,  natural  and  political.  The  Roman  ele- 
ments which  have  been  since  absorbed,  whether  by  con- 
scious adaptation  or  otherwise,  ab  extra,  are  not  of  the  essence 
of  the  system,  however  largely  they  may  have  entered  into 
the  private  law  side  of  it.  Specialists  who  have  followed 
Kemble  have  devoted  themselves  rather  to  English  institu- 
tional history  than  to  that  of  private  law  for  the  obvious 
reason  that  of  the  two  it  is  by  far  the  most  distinctive  and 
far-reaching  in  its  influence.  An  exception  must,  however, 
be  made  in  favor  of  Pollock  and  Maitland's  History  of  Eng- 
lish Law,  whose  excellence  is  universally  recognized. 

Emphasis  has  been  given  at  the  proper  place  to  the  fact 
that  the  public  law  of  Rome,  constitutional  and  administra- 
tive, was  rejected  because  inapplicable  to  the  new  conditions 
that  arose  when  the  state  system  of  modern  Europe,  in  which 
the  state  as  the  nation  is  the  unit,  swept  away  and  super- 
seded the  ancient  state  system  in  which  the  city-common- 
wealth had  been  the  unit.  What  did  survive  was  the  private 
civil  law  of  family  and  property,  of  contract  and  tort,  ba^ed 
on  principles  of  natural  equity  and  universal  reason  which 
have  not  lost  their  force  with  the  altered  circumstances  of 
more  recent  times.  It  is  that  system  of  Roman  private  law 


xiv  PREFACE 

which  became  the  basis  of  the  codes  of  the  Continental  na- 
tions, whence  it  passed  into  Mexico,  Central  and  South 
America,  to  certain  states  in  South  Africa,  as  well  as  to 
Scotland  and  Louisiana.  On  the  other  hand,  it  is  the  public 
law  of  England  that  has  had  the  widest  extension,  and  is 
exercising  by  far  the  most  potent  influence  by  reason  of  the 
fact  that  the  English  constitutional  system  stands  out  as 
the  accepted  political  model  after  which  have  been  fashioned 
the  many  systems  of  popular  government  now  existing 
throughout  the  world.  Since  the  beginning  of  the  French 
Revolution  nearly  all  the  states  of  Continental  Europe  have 
organized  national  assemblies  after  the  model  of  the  English 
Parliament  in  a  spirit  of  conscious  imitation.  Not,  however, 
until  the  typical  English  national  assembly,  embodying  what 
is  generally  known  as  the  bicameral  system,  had  been  popu- 
larized by  the  founders  of  the  federal  republic  of  the  United 
States,  was  it  copied  into  the  Continental  European  constitu- 
tions. Nothing  is  more  interesting  in  the  institutional  his- 
tory of  the  world  than  the  approaches  now  being  made  to  the 
constitutional  system  of  the  United  States  by  Mexico  and  the 
states  of  Central  and  South  America.  In  some  instances  in 
Latin  America  single  states  approach  very  closely,  so  far  as 
their  constitutional  law  is  concerned,  to  the  English  original  as 
modified  by  American  innovations;  in  others,  federal  states 
are  organized  on  the  American  plan,  with  certain  reserva- 
tions. But  no  matter  to  what  extent  a  Mexican,  Central,  or 
South  American  state  may  adopt  English  constitutional  law 
in  the  structure  of  its  outer  shell,  its  interior  code  of  private 
law  is  invariably  Roman,  —  a  fact  equally  true  of  every 
Continental  European  state  whose  constitution  has  been 
founded  on  the  English  model.  Jurists  who  view  the  exist- 
ing state  system  of  the  world  as  a  connected  whole  cannot 
fail  to  perceive,  when  their  attention  is  specially  directed  to 
the  subject,  that,  within  a  century,  in  the  blending  of  Roman 


PREFACE  xv 

and  English  law  there  has  occurred  a  phenomenon  that  marks 
a  turning  point  in  the  history  of  legal  development.  After  cen- 
tiuies_pf  growth  Roman  public  law,  constitutional  and  admin- 
istrative, perished,  leaving  behind  it  the  inner  part,  the  private 
law,  largely  judge-made,  which  lives  on  as  an  immortality  and 
universality,  —  as  the  fittest  it  survives.  In  the  same  way 
and  for  the  same  reason  English  public  law,  the  distinctive 
and  least  alloyed  part  of  that  system,  is  living  on  and  expand- 
ing as  the  one  accepted  model  of  popular  government.  The 
phenomenon  in  question  is  presented  by  the  blending  now 
going  on  between  the  strongest  elements  of  Roman  and  Eng- 
lish law  in  the  state  systems  of  Continental  Europe,  in  those 
of  Latin  America,  and  in  that  of  the  state  of  Louisiana.  If 
the  existing  state  system  of  France  is  taken  as  a  typical 
illustration,  we  there  find  the  outer  shell  of  the  state,  the 
system  of  parliamentary  government,  to  be  purely  English 
through  deliberate  and  recent  imitation,  while  the  interior 
code  of  private  law  is  essentially  Roman.  The  same  thing 
may  be  said  of  every  other  Continental  European  state  hav- 
ing a  parliamentary  government.  In  the  state  system  of 
Louisiana  we  find  the  outer  shell  of  the  state  to  be  English, 
as  modified  by  American  innovations,  while  the  interior 
private  law  is  based  on  the  Code  Napoleon.  The  same  thing 
is  true  of  the  seventeen  Latin-American  republics  which  have 
adopted  English  constitutions  in  the  North  American  form, 
while  retaining  the  private  law  drawn  from  Roman  sources. 
Is  it  not  therefore  manifest  that  out  of  this  blending  of  Roman 
and  English  law  there  is  rapidly  arising  a  typical  state-law 
system  whose  outer  shell  is  English  public  law,  including  jury 
trials  in  criminal  cases,  and  whose  interior  code  is  Roman 
private  law?  This  far-reaching  generalization,  now  sub- 
mitted to  the  consideration  of  students  of  the  Science  of 
Jurisprudence  for  the  first  time,  so  far  as  the  author  knows, 
has  been  subjected  in  advance  to  the  searching  and  approving 


xvi  PREFACE 

criticism  of  a  few  of  the  most  eminent  jurists  of  the  English- 
speaking  world. 

The  representative  systems  that  sprang  up  as  a  part  of 
the  constitutional  machinery  of  the  several  provincial  states 
founded  by  English  settlers  upon  American  soil  were  in  no 
proper  sense  the  result  of  imitation.  Like  the  states  them- 
selves of  which  they  were  a  part,  they  were  the  predestined 
product  of  a  national  process  of  reproduction.  The  con- 
stitutional history  of  these  provincial  states  does  not  begin 
with  the  landing  of  the  English  in  America  in  the  seventeenth 
century,  but  with  the  landing  of  the  English  in  Britain  in  the 
fifth.  When,  after  the  severance  of  the  tie  that  bound  these 
provincial  states  to  the  mother  country,  the  time  came  for 
them  to  confederate,  they  simply  reproduced  the  ancient 
type  of  a  federal  union  as  then  existing  between  the  Low- 
Dutch  communities  at  the  mouth  of  the  Rhine,  and  between 
the  High-Dutch  communities  in  the  mountains  of  Switzer- 
land, and  upon  the  plains  of  Germany.  The  fundamental 
principle  underlying  all  such  fabrics  was  the  requisition 
system,  under  which  the  federal  head  was  simply  endowed 
with  the  power  to  make  requisitions  for  men  and  money 
upon  the  states  or  cities  composing  the  league  for  federal 
purposes,  while  the  states  alone,  in  their  corporate  capacity, 
possessed  the  power  to  execute  and  enforce  them.  In  their 
first  effort  American  statesmen  exhibited  no  fertility  of  re- 
source whatever  in  the  making  of  federal  constitutions. 
The  first  fabric  simply  embodied  the  very  old  story  of  a 
confederation  with  the  entire  federal  power  vested  in  a 
single  assembly,  without  an  executive  head,  and  without  a 
judiciary.  In  1787  —  eleven  years  after  the  drafting  of 
the  first  federal  constitution,  which  proved  to  be  a  failure  — 
the  world  was  startled  by  the  announcement  that  a  second 
had  been  drafted,  embodying  a  radical  departure  from  all 
preceding  experiments.  As  Tocqueville  has  expressed  it: 


PREFACE  xvii 

"This  constitution,  which  may  at  first  be  confounded  with 
federal  constitutions  that  have  preceded  it,  rests  in  truth 
upon  a  wholly  novel  theory  which  may  be  considered  a  great 
discovery  in  modern  political  science."  As  the  second  con- 
stitution has  no  prototype  in  history,  Gladstone  made  no  mis- 
take when  he  declared  it  to  be  "  the  most  wonderful  work 
ever  struck  off  at  a  given  time  by  the  brain  and  purpose  of 
man."  No  other  viable  constitution  was  ever  so  distinctly 
an  invention;  its  basic  principles  were  discovered  suddenly 
by  some  man  or  by  some  body  of  men.  And  yet,  despite 
that  fact,  there  has  been  no  curiosity  to  discover  who  was 
the  real  inventor  of  the  greatest  of  inventions.  The  popular 
and  uncritical  idea  has  been  that,  in  some  mysterious  way, 
the  invention  was  made  as  a  composite  work  by  the  leaders 
who  sat  in  the  Federal  Convention  during  the  125  days  ^-t^ 
that  intervened  between  May  14  and  September  17,  1787. 
The  impossibility  of  that  nebulous  theory  is  manifest  the 
moment  we  remember  it  is  admitted,  on  all  hands,  that  the 
finished  product  was  the  outcome  of  four  kindred  "plans  "  — 
each  embodying  the  basic  principles  of  the  great  invention  — 
which  were  carefully  formulated  sometime  beforehand.  We 
know  that  Madison,  the  draftsman  of  the  most  important  of 
the  "plans,"  was  at  work  upon  it  at  least  a  year  before  the 
Convention  met.  The  question  is  therefore  inevitable  — 
From  what  common  source  did  the  draftsmen  of  the  four 
"plans"  draw  the  path-breaking  invention  which  was  the 
foundation  of  all  of  them?  Let  it  be  said  to  the  honor  of 
those  draftsmen  that  no  one  of  them  ever  claimed  to  be  the 
author  of  that  invention.  Neither  Madison,  nor  Charles 
Pinckney,  nor  Sherman,  nor  Ellsworth,  nor  Hamilton,  nor 
any  of  their  biographers,  ever  put  forward  such  a  claim  in 
behalf  of  any  one  of  them.  There  is  now  no  excuse  for  doubt 
upon  the  subject,  as  the  complete  and  conclusive  evidence  is 
contained  in  a  single  document,  as  authentic  as  the  Constitu- 


xviii  PREFACE 

tion  itself,  published  at  Philadelphia,  February  16,  1783,  by 
Pelatiah  Webster,  who  claimed  at  the  time  the  invention  as 
his  own.  As  early  as  1781  he  perceived  that  the  first  federal 
constitution  was  a  failure.  Then  it  was,  as  Madison  tells 
us,  that  he  proposed  the  calling  of  a  "Continental  Conven- 
tion" for  the  purpose  of  making  a  new  one.  Webster  says 
in  express  terms  that  he  was  fully  of  opinion  "that  it  would 
be  ten  times  easier  to  form  a  new  constitution  than  to  mend 
the  old  one."  In  that  frame  of  mind  the  great  one  set  him- 
self to  work  to  create  an  entirely  new  and  unique  federal 
system  which  should  supersede  the  first  constitution  of 
1776.  In  his  epoch-making  paper,  published  more  than 
four  years  before  the  Federal  Convention  of  1787  met,  he 
propounded  to  the  world,  as  "the  original  thoughts  of  a 
private  individual,  dictated  by  the  nature  of  the  subject 
only,"  the  four  novel  and  basic  principles  upon  which  the 
great  creation  now  reposes :  — 

(1)  The  principle  of  a  federal  government  operating  di- 
rectly on  the  individual,  instead  of  upon  the  states  as  cor- 
porations; (2)  the  division  of  a  federal  government  into 
three  departments  —  legislative,  executive,  and  judicial ; 
(3)  the  division  of  a  federal  legislature  into  two  chambers 
on  the  bicameral  plan;  (4)  a  federal  government  with  dele- 
gated powers,  the  residuum  of  power  remaining  in  the  states. 
For  some  years  before  they  began  their  work  the  draftsmen 
of  the  four  "plans"  held  in  their  hands  the  text  of  the  great 
invention,  which  passed  through  such  "plans,"  as  conduits, 
into  the  existing  Constitution  of  the  United  States.  Those 
who  shall  hereafter  strive  to  take  away  from  Pelatiah  Web- 
ster the  honor  of  having  made  this  free  and  priceless  gift  to 
the  country  that  has  for  so  long  a  time  neglected  and  for- 
gotten him  must  be  prepared  to  meet  the  concrete  issue  of 
historical  fact  involved,  —  they  must  be  prepared  to  name 
some  particular  man  who  announced  some  one  of  the  four 


PREFACE  xix 

basic  principles  in  question,  prior  to  February  16,  1783.  If 
that  cannot  be  done,  the  cavilers  must  forever  hold  their 
peace.  The  puerile  argument  that  a  great  many  people  were 
thinking  about  such  things  about  that  time  fails  to  meet  the 
issue  at  all.  As  it  has  been  the  good  fortune  of  the  author 
to  unearth  this  epoch-making  document  and  to  place  it  in 
its  proper  light,  it  is  printed  as  an  appendix  to  this  work  so 
that  students  of  the  Science  of  Politics  everywhere  may  see 
for  themselves  the  tentative  form  in  which  appeared  an  in- 
vention that  has  revolutionized  federal  government  through- 
out the  world. 

Not  until  Comparative  Politics  and  Comparative  Law  had 
collected  the  data  was  it  possible  to  draw  from  them  the  set 
of  principles  constituting  the  Science  of  Jurisprudence,  whose 
function  it  is  to  extract  from  the  mass  of  detail,  embodied  in 
the  several  existing  systems  of  positive  law,  the  compara- 
tively few  and  simple  basic  legal  conceptions  that  underlie 
them  all.  Or,  as  Austin  has  expressed  it,  "The  proper  sub- 
ject of  general  or  universal  Jurisprudence  is  a  description  of 
such  subjects  and  ends  of  laws  as  are  common  to  all  systems, 
and  of  those  resemblances  between  different  systems  which 
are  bottomed  in  the  common  nature  of  man,  or  correspond 
to  the  resembling  points  in  these  several  portions."  As  the 
science  of  positive  law  is  a  Roman  creation,  Jurisprudence  a 
Roman  invention,  we  must,  according  to  the  Historical 
Method,  begin  with  an  examination  of  the  actual  conditions 
at  Rome  out  of  which  the  science  in  question  arose,  in  order 
to  illustrate  by  the  facts  of  history  the  nature  of  the  processes 
through  which  it  works  out  its  results.  An  effort  will  be 
made  hereafter  to  demonstrate  that  Rome's  relation  to 
commerce  caused  an  influx  of  foreigners  whose  need  of  law 
compelled,  as  early  as  242  B.C.,  the  appointment  of  a  praetor 
peregrinus,  whose  duty  it  became  to  administer  justice  be- 
tween Roman  citizens  and  foreigners  and  between  citizens  of 


xx  PREFACE 

different  cities  within  the  Empire.  As  such  praetor  could  not 
rely  upon  the  law  of  any  one  city  for  the  criteria  of  his  judg- 
ments, he  naturally  turned  his  eyes  to  the  codes  of  all  the 
cities  from  which  came  the  swarm  of  litigants  before  him. 
Thus  we  encounter  what  is  perhaps  the  earliest  application 
of  Comparative  Law,  employed  for  the  purpose  of  extracting 
from  the  codes  of  all  the  nations  with  which  the  Romans  were 
brought  into  commercial  contact  a  body  of  principles  after- 
wards known  as  the  jus  gentium,  the  law  common  to  all 
nations.  With  the  growth  of  the  dominion  of  Rome  and  the 
consequent  necessity  for  the  extension  of  the  code  of  a  single 
city  to  many  cities,  there  was  a  natural  craving  for  the  dis- 
covery of  legal  principles  capable  of  universal  application. 
In  response  to  such  a  demand  Comparative  Law  collected  the 
data,  and  a  certain  branch  of  Greek  philosophy  supplied  the 
theory  upon  which  they  could  be  worked  into  a  consistent 
whole.  Such  was  the  origin  and  such  the  nature  of  the  first 
set  of  principles  which  can  be  said  to  embody  a  philosophy 
of  law.  As  such  principles  were  the  result  of  generalizations 
upon  elements  common  to  the  laws  of  all  nations,  their  ex- 
istence was  supposed  to  indicate  a  similarity  in  the  needs  and 
legal  conceptions  of  all  peoples.  The  philosophic  element 
was  the  Stoic  conception  of  a  law  of  nature,  a  universal  code 
from  which  all  particular  systems  were  supposed  to  be  derived 
and  to  which  all  tended  to  assimilate. 

If  it  be  true  that  the  Science  of  Jurisprudence  is  directly 
and  practically  concerned  only  with  the  data  to  be  drawn 
from  the  histories  of  Roman  and  English  law,  investigation 
need  not  be  extended  beyond  the  areas  in  which  these  two 
systems  exist,  singly  or  in  combination.  The  effort  has  been 
made  herein  to  outline,  by  the  aid  of  the  Historical  Method, 
the  growth  of  law,  public  and  private,  within  such  areas. 
Not  until  the  synthesis  has  ended,  not  until  the  growth  of  all 
the  ingredients  that  enter  into  the  final  composite  has  been 


PREFACE  xri 

traced,  however  faintly,  should  the  analysis  begin.  Not 
until  the  history  of  the  law  systems  of  the  civilized  world, 
with  which  we  have  to  deal,  has  been  drawn  out  by  the  aid 
of  the  Historical  Method,  should  an  effort  be  made  to  classify 
and  define  the  elements  that  enter  into  them  by  the  aid  of 
the  Analytical.  Until  we  have  ascertained  how  law  grew, 
it  is  impossible  to  understand  what  it  is.  The  final  outcome, 
so  far  as  this  treatise  is  concerned,  is  embodied  in  the  follow- 
ing conclusions :  (1)  as  law  is  a  living  and  growing  organism 
which  changes  as  the  relations  of  society  change,  the  Science 
of  Jurisprudence  must  look  behind  the  law  into  those  social 
relations  which  are  generally  recognized  as  having  legal  con- 
sequences, in  order  to  note,  as  Austin  has  expressed  it,  "those 
resemblances  between  different  systems  which  are  bottomed 
in  the  common  nature  of  man" ;  (2)  in  the  light  of  knowledge 
thus  obtained  this  science  must  extract  from  the  mass  of 
details  embodied  in  the  several  systems  of  positive  law  en- 
forced by  the  political  sovereignties  composing  the  family 
of  nations  the  comparatively  few  and  simple  basic  ideas  that 
underlie  the  endless  variety  of  legal  rules;  (3)  such  a  science 
is  from  its  very  nature  an  applied  and  progressive  science 
whose  generalizations  must  be  made  anew  whenever  the 
data  change  through  the  creation  of  new  systems  of  positive 
law;  (4)  no  matter  whether  we  look  to  the  ancient  or  to  the 
modern  world,  it  appears  that  Comparative  Law  has  ever 
been  the  subsidiary  science  that  collects  the  data  to  which 
the  Science  of  Jurisprudence  has  been  and  must  ever  be 
applied.  Not  until  after  that  collecting  agency  has  gathered 
the  materials  can  Jurisprudence,  as  an  analytical  and  applied 
science,  formulate  an  orderly  scheme  of  the  purposes,  methods, 
and  ideas  common  to  every  system  of  positive  law.  There  is 
no  good  reason  to  doubt  that  through  the  application  of  the 
incipient  Science  of  Jurisprudence  to  the  data  collected  by 
Comparative  Law,  Roman  jurists  were  able  to  extract  from 


xxii  PREFACE 

the  various  codes  of  the  cities  with  which  Rome  came  into 
commercial  contact  a  set  of  principles  embodying  the  gen- 
eral conceptions  of  legal  right  then  dominant  in  the  ancient 
world  and  known  as  the  law  of  the  nations  —  jus  gentium. 
After  the  lapse  of  twenty  centuries,  a  new  system  of  codes, 
far  greater  in  number  and  far  more  voluminous  in  detail, 
have  come  into  existence,  from  which  the  jurists  of  to-day 
should  be  able  to  extract,  through  a  reapplication  of  the 
Roman  method,  the  comparatively  few  basic  principles  that 
underlie  them  all.  As  more  rapid  intercommunication  draws 
the  nations  of  the  world  closer  together,  the  longing  increases 
for  a  modern  law  of  the  nations,  that  is,  for  a  uniform  con- 
ception of  legal  right,  capable  of  embodiment  in  a  code  of 
substantive  and  adjective  law,  which  must  emerge,  if  at  all, 
from  existing  codes,  like  the  single  and  typical  face  in  a 
composite  photograph  to  which  many  features  have  con- 
tributed their  influence. 

WASHINGTON,  B.C. 
2018  0  STREET. 


CONTENTS 

PART  I 
HISTORICAL 

CHAPTER  I 
ANALYTICAL  AND  HISTORICAL  METHODS  CONTRASTED 

PAOB8 

1.  Jurisprudence   a  Branch  of  the  Science  of  Politics:    Analytical        3 

method  as  applied  by  Machiavelli,  Bodin,  and  Hobbes ;  separa- 
tion of  the  sciences  ;  Aristotle  the  founder  of  political  science  ;  his        4 
separation  of  ethics  from  politics. 

Revival  of  the  theory  of  politics  :  its  modern  study  begins  with        5 
Machiavelli ;  his  Principe  (1513)  ;  Jean  Bodin  ;   Commonwealth        6 
(1576),  embodying  modern  theory  of  the  state ;  distinguished  be- 
tween legal  obligation  and  moral  duty  ;  Hobbes's  Leviathan  (1651)  ;        7 
original  or  social  contract ;  definition  of  sovereignty ;  of  positive 
laws ;  separation  of  policy  from  legality ;    Austin's  Province  of       9 
Jurisprudence  Determined  (1832)  ;  positive  law  defined  ;  law  as  a 
command  ;  laws  improperly  so  called  ;  Holland's  Elements  of  Juris-      10 
prudence  (1880)  ;  Pollock's  tribute  ;  sovereignty  defined  ;  positive 
law  defined ;  "  Ethic  and  Nomology." 

2.  Historical   Method  and   its  Handmaids:     Origin  of  Comparative      12 

Politics  and  Comparative  Law  ;  Montesquieu's  connection  with  the      13 
Historical  Method  ;  cause  of  transition  from  the  old  method  to  the 
new ;  Auguste  Comte. 

Comparative  Politics  and  its  best  fruit :  village  community  the      14 
unit  of  the  city-state  ;  basis  of  Aristotle's  political  reflections  ;  Ital-      15 
ian  city-states  ;  origin  and  growth  of  Rome  as  a  city-state  ;  domi-      16 
nant  conception  in  the  ancient  world ;  modern  conception  of  the      17 
state  as  a  nation  ;  Teutonic  political  organization  ;  parallel  between      18 
Teutonic  Greek  and  Latin  tribe  ;  in  Greece  and  Italy  tribes  united 
in  city-states,  in  Teutonic  lands  in  nations ;  tribal  sovereignty  ;      19 
transition  to  territorial  through  feudalism  ;  completion  marked  by 
accession  of  Capetian  dynasty  in  France ;  basis  of  state  system  of 
modern  Europe ;   sovereignty  as  defined  by  Bodin,   Hobbes,  and      20 
Austin ;   Austin's  definition  criticised  by  Maine ;  weak  point  in      21 
Maine's  view  ;  Holland's  summing  up. 

Comparative  Law  and  its  best  fruit:  Savigny  (1779-1861)  ;  law      23 
as  the  outcome  of  national  consciousness  ;  Savigny  dealt  only  with 

niii 


xxiv  CONTENTS 

PACKS 

Roman  materials  ;  Maine  (1822-1888)  ;  scope  of  his  original  work ;  24 

Ihering  (1818-1892)  ;  Code  of  Hammurabi ;  papyrus  leaves  found  25 

in  convent  on  Mount  Sinai ;   Dareste ;    Freeman,   Pollock,    and  26 
Bryce. 

CHAPTER   II 
JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED 

1.  Jurisprudence   is  the   Science   of   Positive  Law :   Austin's  state-      28 

ment ;  Savigny's  definition  of  law ;  Bryce's  definition  ;  teaching  of      29 
the  Boston  law  school ;  law  is  a  living  and  growing  organism  which 
changes  as  the  relations  of  society  change. 

2.  Processes   of  Jurisprudence:   Comparative  Law  subsidary  science      30 

that  collects  the  data ;  application  of  Comparative  Method  to  Ian-      32 
guage ;  Jurisprudence  an  analytical  and  applied  science. 

3.  Making  of   the   Roman  Jus    Gentium :    Rome's  relation  to   com-      33 

merce  ;  the  praetor  peregrinus  ;  earliest  application  of  Comparative  34 

Law ;  Stoic  philosophy  ;  definitions  of  the  jus  gentium  by  Cicero  35 

and  Gains ;  effect  of  jus  gentium  on  jus  civile  ;  Jurisprudence  as  an  36 
applied  science ;  as  a  science  it  is  indivisible ;  Science  of  Jurispru- 
dence defined. 

4.  Cicero's  Conception  of  a  Philosophy  of  Law :   A  chapter  from  De  37 

Oratore ;  essence  of  Cicero's  unexecuted  plan ;   Bryce's  untena-  38 

ble  conclusion ;    necessity  for  a  modern  jus  gentium ;  how  that  40 

result  may  be  attained ;  one  basis  for  hope      .....        .  41 

5.  Five  Original  Law  Systems :    Chinese  law ;  Muhammedan  law ;  42 

Hindu  law  ;  law  systems  of  India  ;  English  Privy  Council ;  English  43 

law  in  India ;  Indian  Law  commissions  of  1833,  1853,  1861 ;  when  44 
no  native  law  or  custom  can  be  proved. 

Roman  and  English  law  dominate  the  world ;    strongholds  of  45 

Roman  law  ;  strongholds  of  English  law  ;  possibility  of  a  universal  46 

code  of  private  law  and  of  civil  procedure  ;  disuse  of  juries  in  civil  47 
cases ;  study  of  Roman  law  in  English-speaking  world. 

CHAPTER  III 
EXTERNAL  HISTORY  OF  ROMAN  LAW 

1.  Failure  of  the  Greeks  to  produce  a  Philosophy  of  Law:    No  im-  48 

posing  legal    monuments ;    Aristotle's    Constitutions ;   customary  49 

law  ;  written  codes  ;  commercial  usages  ;  military  tenures  ;  resident  50 

foreigners  and  treaty  making ;  definitions  of  positive  law        .        .  61 

2.  Roman   Constitution  in   the   Regal   Period :    Rome   as   an   inde-  52 

pendent  city-state  ;  its  Latin  origin ;  fusion  of  communities ;  divi- 
sion into  tribes  and  curiae ;   curia  the  keystone ;   the  populus  53 
Eomanus. 


CONTENTS  xxv 

PAOKS 

Elective  kingship  ;  method  of  election  ;  rights  and  duties  of  the  64 

rex  ;  origin  and  functions  of  the  senate  ;  popular  assembly  (comitia  65 

cnriata)  and  its  functions ;  questions  of  war  and  peace  ;  right  to  66 
attest  certain  acts ;  supremacy  of  the  state  over  the  separate  com- 
munities ;  the  federal  element  abides. 

3.  Roman  Private  Law  in  the  Regal  Period:  The  primitive  family  as  67 

a  corporation ;  patria  potestas ;   children  but  little  better  than  68 

slaves  ;  house-father  as  head  of  family  corporation  ;  religious  duty  69 

to  perpetuate  it ;  status  of  house-mother  ;  her  dowry  ;  adoption ;  60 
patria  potestas  did  not  extend  to  jus  publicum. 

Agnatic  succession  ;  group  of  agnates  succeeded  as  a  unit ;  a  man  61 
lives  on  in  his  heirs  ;  foundation  of  agnation  potestas ;  mulier  est 

finis  familiae ;  later  rule  of  cognation ;   its  essence  community  of  62 
blood. 

Two  kinds  of  patrician  wills  ;  comitia  calata  ;  testament  in  pro-  63 

cinctu;  the  plebeian  will;   a  conveyance  inter  vivos;  key  to  its  64 
characteristics ;  validity  confirmed  by  the  Twelve  Tables. 

Relation  of  law  to  religion  ;  precepts  of  the  fas ;  leges  regiae ;  66 

jus  defined ;  difference  between  jus  and  fas  ;  custom  rather  than  66 

statute   main  factor  of  jus  of  the  regal  period ;   jus  quiritium ;  67 

crimes,  offenses,  and  civil  injuries  ;  public  prosecutions  ;  king  as  68 

judge  ;  vengeance  and  self-help  ;  spear  as  arbiter ;  college  of  pon-  69 

tiffs  ;  Servian  reforms;  habit  of  intrusting  judicial  office  to  private  70 
citizen ;  Servian  enactments  as  to  contracts  and  crimes. 

4.  Plebeians  in  the  Regal  Period :  Origin  of  the  plebeiate  in  client-  71 

ship ;  plebeian  families  incapable  of  forming  a  gens ;    no  inter-  72 

marriage  with  gentile  houses ;  Servian  military  system  ;  four  new  73 

tribes  invented ;  wealth  as  a  qualification  ;  the  census  ;  basis  of  the  74 
political  system  ;  comitia  centuriata  and  its  functions. 

5.  The  Republic  and  the  Twelve  Tables :  Kingly  office  put  into  com-  76 

mission  ;  kingly  power  survived  ;  consuls  and  quaestors ;   senate  as  76 

stronghold  of  patrician  influence ;  dictatorship  and  criminal  law ;  77 

plebs  struggle  to  limit  power  of  magistrates ;  concession  of  495  B.C.  ;  78 
creation  of  tribunes ;  concilium  plebis  curiatim ;  plebs  could  only 

bind  themselves  prior  to  287  ;  plebs  advance  beyond  defensive  con-  79 

trol ;  plebs  demand  that  customary  law  be  reduced  to  writing  ;  new  80 
board  of  ten  including  plebeians. 

Fragments  of  the  Twelve  Tables ;  effort  to  make  the  law  equal  81 

for  all ;  constitutional  guarantees ;  religious  penalties  and  self-help  ;  82 

domain  of  private  law  ;  mystery  as  to  forms  of  action  continues ;  83 

code  thoroughly  Roman    .        .        .      ••„  .  ;  *, •;•    ./;     .    ;    ...-,,.  .  84 

Transition  from  unwritten  law  to  ancient  codes ;    motives  for  85 

codification  ;  result  of  transition  ;  the  problem  of  problems ;  legal  86 
fictions  ;  equity  ;  legislation  under  the  empire. 

6.  The   Praetor   Urbanus    and   the   Jus    Civile :  Leges   Valeriae  Ho-  87 

ratiae ;  opening  of  the  consulship  ;   first  plebeian  consul ;  a  third  88 
colleague  to  the  consuls  ;  permanent  severance  of  civil  jurisdiction. 


xxvi  CONTENTS 

VMM 

Praetor  as  administrator  of  jus  civile;  available  for  Romans  89 

only  ;  judex  ;  jurisconsults  ;  response  prudenti um  ;  principles  of  90 

interpretation  ;  the  edict ;  its  relation  to  jus  gentium;  jus  honora-  91 

rium  denned ;  the  edict  as  an  agent  of  law  reform ;  its  climax  92 

reached  in  last  century  of  republic  ;  law  of  a  city  becomes  law  of  93 
an  empire. 

7.  The  Praetor  Peregrinus   and  the  Jus  Gentium :  Status  of  aliens  94 

in  archaic  law ;  Greek  ameliorations  ;  jus  commercii ;  jus  gentium  95 

as  a  market  law  ;  became  identical  with  jus  naturale ;  its  effect  96 

on  jus  civile ;  legis  actiones  superseded  by  simpler  procedure ;  97 
Caracalla's  extension  of  the  franchise. 

8.  PontiSces  and  their  Responses  prior  to  Augustas:   Pontifices  as  98 

law  experts ;  response  of  the  college  as  authority  ;  its  mysteries  99 

revealed  by  Flavius,  304  B.C.  ;  commentaria  tripertita  of  Aelius ;  100 
Cato,   the  younger,   152  B.C.  ;    Q.   Mucius  Scaevola,   100  B.C.  ; 

responses  reduced  to  compendia ;  right  to  give  them  limited  by  101 
Augustus. 

9.  Jurisconsults    of   the   Empire    and    Scientific    Law  Literature :  102 

Capito  and  his  school ;  Sabinus  ;  Labeo  and  his  school ;  Proculus ;  103 
rival  teaching  halls  ;  works  of  Labeo  ;  independence  of  his  opin- 
ions ;    probable  author  of  division  of  actions ;    his  precise  and  104 
authoritative  definitions. 

Mission  of  "  classical  jurisprudence  "  ;  Celsus ;  Salvius  Julianus  105 

and  the  Perpetual  edict ;  his  Digesta  ;  Sextus  Pomponius ;  Sextus  106 

Caecilius  Af ricanus ;  Gaius;  Institutionum  commentarii  quattuor  ;  107 

Niebuhr's  discovery  at  Verona,  1816  ;  final  triumph  of  Sabinians.  108 

Greek-speaking  Orient ;  Q.  Cervidius  Scaevola  ;  Papinian ;  Ho-  109 

man  treatises  and  English  case  law  contrasted ;  compilers  who  fol-  110 

lowed  Papinian  ;  Ulpian  ;  Paul;  Modestinus  ;  jus  respondendi  no  111 

longer  conferred  ;  end  of  the  growth  of  Roman  equity ;  summary.  112 

10.  Imperial  Legislation :   Praetorian  edict  as  tentative   legislation ;  114 

private  law  improved  by  praetor  and  jurists ;  organs  of  legislation  ;  115 

methods  of  law-making;    power  of  direct  legislation  passed  to  116 

Senate  ;  imperial  ordinances ;  consistorium  and  its  functions  ;  prae-  117 

torian  prefect ;  two  stages  of  development ;  senatorial  legislation  118 

superseded  by  imperial;  true  type  of  imperial  law;  two  sources  119 
of  law  —  (1)  jus  vetus  ;  (2)  jus  novum, 

11.  Ante- Justinian  Codes  and  Collections :    Codex  Oregorianus ;  Co-  121 

dex  Hermogenianus  •  Law  of  Citations  a  kind  of  codification ;  122 

decadence  of  legal  science  prelude  to  codification  ;  code  of  Theo-  123 

dosius,  438;  Post^Theodosian  Novels;   "  Syrio-Roman  Book  of  124 
Law  " ;  parts  of  a  commentary  on  Ulpianus  ad  Sabinum. 

12.  Christianity  and  the  Canon  Law:  Ecclesiae  as  "  benefit  and  burial  125 

societies";  systems  of  interior  law;  effect  of  state  recognition 

of  Christianity  ;  it  supplements  Roman  law ;  canons  defined  ;  en-  126 
croachments  upon  municipal  law. 

Jurisdiction  of  episcopal  courts ;  its  wide  extension  ;  criminal  127 


CONTENTS 

PA0XS 

law ;  appeals  to  the  Roman  curia  ;    Collectio  Dionysiana ;  His-    128 
pana;   Pseudo-Isidoriana,   or   False   Decretals;    beginning   of    129 
struggle  between  pope  and  emperor ;  clergy  as  a  distinct  body ; 
conflict  of  jurisdictions. 

Gratian,  founder  of  the  science  of  canon  law;  scope  of  his  130 
work ;  its  method  ;  Bologna's  two  faculties ;  decretales  extrava-  131 
gantes;  code  of  Gregory  IX.  ;  Liber  Sextus;  Clementinae;  Greg-  132 
ory  IX.,  the  church's  Justinian. 

IS.  Teutonic  Invasions  and  Romano-Barbarian  Codes :  Primitive  con-    133 
ception   of  sovereignty,  personal  or   tribal ;  like   conception  of 
law ;  three  streams  of  Teutonic  invasion  ;  older  civilization  sur-    134 
vived  ;  system  of  personal  laws  ;  vulgarized  Roman  law  ;   Frank- 
ish  legislation ;    capitularies  of    Charles    the   Great ;    Savigny's    135 
summary ;  the  forged  capitularies ;  transition  from  personal  to    136 
territorial  organization  ;  an  age  in  which  no  one  legislates  ;  growth 
of  "  the  classic  feudalism  "  out  of  the  folk-laws       .        .        ...     137 

German  kings  anticipated  Justinian's  work ;  Edictum  Theodo- 
rici;   Lex  Romano  Burgundionum ;    Breviarium  Alarici,   Lex    138 
Humana  of  Western  Europe  ;  best  portions  of  imperial  law  pre-    139 
served  ;  work  of  the  glossators. 

14.  Corpus  Juris  C/V/7/s  of  Justinian:  First  code  published  in   529,    140 

second  in  534;    constitution    Cordi  nobis;  arrangement  follows  141 
edict ;  Novels  ;  new  legislation  and  its  effects. 

Making  of  the  Digest ;  commission  headed  by  Tribonian ;  divided  142 
into  three  sections ;  each  law  an  excerpt  from  an  earlier  jurist ;  143 
principal  contributors;  no  Christian  elements;   "the  Fifty  De- 
cisions";  authority  of  the  commissioners;   Digest  or  Pandects  144 
published,  December  16,  533. 

Text-book  known  as  the  Institutes ;  founded  on  Gaius ;  law  145 

teaching  confined  to  Rome,  Constantinople,  and  Beirout ;  Code,  146 
Digest,  and  Institutes  of  equal  authority;  emperor  only  fountain 

of  law  ;  extension  of  Roman  law  ;  the  Basilica ;  Justinian's  works  147 

in  the  West ;  Julian's  epitome ;   school  at  Ravenna ;  school  at  148 

Pavia  ;  school  at  Bologna ;  Digest  ignored  by  clergy  ;  glossators  ;  149 

new  career  of  Roman  law  in  the  West ;  only  private  law  of  Rome  151 
survived. 

15.  Extension  of  Roman  Law  to  the  Provinces:  Rights  of  cities,  free  152 

and   tributary;    lex  provineiae;   provinces  of  two  kinds;   two    153 
classes  of  inhabitants ;  provincial  governor ;  his  court  for  Roman    154 
citizens ;  provincials  lived  on  under  their  own  law ;   importance 
of  the  edict ;  civil  jurisdiction  based  on  it ;  lex  of  Sicily ;  wide    155 
scope  of  local  city  courts ;  governor's  criminal  jurisdiction  ;  Athe-    156 
nian  Areopagus ;  gradual  assimilation  of  Roman  and  provincial 
law ;  direct  legislation  as  to  private  law ;  as  to  public ;  effect  at    157 
Rome  of  jus  gentium  on  jus  civile ;   outcome  of  the  process  of 
assimilation  ;  but  one  law  from  Caracalla  to  Theodosius ;  excep-    158 
tions  as  to  the  East. 


xxviii  CONTENTS 

PAGB8 

16.  Roman  Private  Law  in  Spain :  Administrative  divisions ;  classi-    159 

cal  jurisprudence;  "customs  of  the  Goths"  ;  Breviary  of  Alaric  160 

II. ,  506  ;  Fuero  Juzgo,  687-700,  depressed  but  not  extinguished  by  161 

Saracenic  invasion ;  work  of  unification  ;  Siete  Partidas  approved  162 

in  1348  ;  Fuero  Real,  1255  ;  Consolato  del  Mare;  La  Nueva  Ee-  163 
copilacidn,  1567  ;  La  Novisima  Recopilacidn,  1805 ;  Codes  of  1870, 

1881, 1882, 1885,  1889,  1893  ;  Spain  transmitted  Koman  law  to  the  164 
Americas ;  starting-point  Siete  Partidas ;  Council  of  the  Indies ; 

Partidas  in  Louisiana  ;  Roman  private  law  in  Cuba,  Porto  Eico,  165 
and  the  Philippines  ;  civil  government  during  military  occupation. 

17.  Roman  Private  Law  in  France :  Law  of  the  Empire  modified  by  166 

Teutonic  customs  and   legislation ;   ordinances  from  Louis  XI. 
to  Louis  XIV.  ;  pays  du  droit  ecrit  and  pays  du  droit  coutoumier;    167 
three  hundred  and   sixty  groups  of  customary  law ;  Custom  of 
Paris ;  problem  confronting  French  jurists. 

Work  of  the  glossators  ;  glossa  of  Accursius  a  continuous  com-    168 
mentary  ;  Roman  law  as  a  branch  of  academical  teaching ;  glossa 
of  Bartolus ;  mos  Italicus ;  Pierre  de  la  Hainee ;  mos  Gallicus;    169 
Cuiacius  and  Donellus;  the  "French  School";  triumph  of  the 
synthetical  method. 

Code  Napoleon ;  Rousseau's  dream  of  a  code  "  as  simple  as  170 
nature"  ;  outcome  of  first  attempt;  Commission  of  August  12,  171 
1800 ;  Napoleon's  personal  agency  ;  published  in  1804  ;  elements  172 
that  entered  in  it ;  "  Code  Napoleon,"  1807  ;  centennial  of  1904. 

Extension  of  French  law  to  America  ;  Custom  of  Paris ;  once    173 
in  force  in  Michigan  ;  compromise  after  Canada  became  English  ;    174 
legal  history  of  Louisiana ;   territorial  statutes  of  1805  ;   rules  of 
interpretation. 

18.  Roman  Private  Law  in  Germany :    Three  hundred  petty  princi-    175 

palities  ;  no  central  power  to  unify  indigenous  German  law ;  recep-    176 
tion  of  Roman  law  in  Germany ;  Herman  Conring's  demonstration ; 
Roman  law  as  such  not  law  of  the  country  ;    usus  modernus    177 
Pandectarum ;  what  the  common  law  of  Germany  is ;  Law  of 
Nature  School ;  tendency  towards  codification  ;  Savigny's  protest ;     178 
his  two  great  works ;  Germany  divided  into  two  regions  ;  territory 
of  codified  private  law  ;  territory  of  the  law  of  the  Pandects. 

First  steps  towards  unity  in  America  and  Germany  commercial ;    179 
general  code  for  German  Empire,  1900  ;   Sohn's  outline  ;  present    180 
Civil  Code  based  on  those  of  Prussia  and  Saxony  ;  Bryce's  state- 
ment ;   farmer  and  merchant  great  powers  in  German  history ;     181 
mercantile  element  crushed  feudalism  ;  rules  of  construction. 

19.  Roman   Private    Law    in    Holland :    Grotius  and  his  successors    182 

turned  instinctively  to  Roman  jurisprudence ;  fusion  of  jus  gen-  183 

tium  and  jus  naturale  ;  Holland's  statement ;  Maine's  statement ;  184 

Gentilis ;    Grotius's  definition  of  natural  law ;  nature  as  a  law-  185 

giver ;  vagueness  of  the  conception ;  alternative  basis  resting  on  186 
consent  alone  ;  only  real  foundation  of  international  law. 


CONTENTS  xxix 

PAGES 

20.  Roman  Private  Law  in  Servia,  Roumania,  and  Other  Countries :    187 

Servia  ;    Roumania  ;    Greece  ;    Russia  ;    Poland  ;     Scandinavian    188 
countries ;  Japan. 

21.  Roman  Origin  of  the  "  Sea  Laws  "  :  Prize  courts  earliest  sources    189 

of  international  law ;   rubrics  relating  to  ships  and  shipping ; 
influence  of  Crusades'  on  trade  ;  Hanseatic  League  ;  collections  of    190 
"sea  laws"  ;  laws  of  Ole*ron  ;  laws  of  Wisbuy  ;  Ordonnance  de  la 
Marine  of  Louis XIV. ;  Consolato  del  Mare;  Guidon  de  la  Mer;    191 
work  of  Mansfield. 

CHAPTER  IV 
EXTERNAL  HISTORY  OF  ENGLISH  LAW 

1.  Growing  Importance  of  English  Public  Law:  Roman  private  and    193 

English  public  law  contrasted ;   in  England  only  did  represent-    194 
ative  system  survive ;    first  reproduced  and  popularized  in  the 
United  States ;  then  reproduced  in  Continental  Europe,  Mexico, 
Central  and  South  America,  and  Japan ;  secret  of  its  enduring    195 
power ;  English  private  law  enriched  from  Roman  sources ;  only    196 
English  public  law  to  be  outlined. 

2.  Teutonic  Origin  of  English  Institution:   Sketches  of  Caesar  and    197 

Tacitus ;  the  civitas  and  its  subdivisions ;   distinctions  of  rank    198 
and  possession  of  land  ;  village  community  as  the  mark  ;  the  mark 
moot ;  the  hundred  and  the  hundred  court ;  the  state  assembly  ;    200 
permanent  council  of  principes ;  a  high  court  of  justice ;  states,     201 
monarchical  and  non-monarchical ;  military  organization  ;  "  fami- 
lies and  affinities"  ;  hundredors  ;  the  comitatus;  lord  and  vassal ;    202 
feudalism  ;  reproductions  of  institutions  in  conquered  territory  ;    203 
primitive  rice  or  kingdom  ;  reproduction  of  civitas  of  Caesar  and 
Tacitus. 

3.  Period  of  Teutonic  Conquest  and  Dimness  of  its  History  :  "  A  Ger-    204 

many  outside  of  Germany  "  ;  language  and  institutions  Teutonic  ;  206 

chasm  that  divided  old  from  new ;  history  of  the  conquest  itself ;  206 

forms  of  first  settlements ;  early  laws ;  Baeda's  history ;  period  207 

of  settlement ;  bit  by  bit  the  land  was  wou  ;  elements  of  political  208 
life  in  the  host ;  township  and  hundred. 

4.  Primitive  and  Heptarchic  Kingdoms :  Early  kingdom  reproduc-  209 

tion  of  civitas;  Romano-British  life  passed  within  certain  limits;  210 

fate  of  Roman  cities  ;  Teutonic  municipal  organization  ;  distinctions  211 

of  rank  and  possession  of  land  ;  free  and  unfree ;  ceorl ;  eolas  ;  212 
laets ;  slaves ;  no  legal  rights,  no  wergild  ;  practice  kinder  than 

theory  ;   village  life  as  a  whole ;    homestead  and  its  incidents ;  213 
growth  of  the  new  kingship ;  invading  tribes  non-monarchical ; 

heretoga  or  ealdorinan  ;    ealdorman  becomes  king ;   blending  of  214 

the  hereditary  with  the  elective  principle ;  ealdorman  as  head  of  215 
district ;  tribal  sovereignty ;  dignity  of  kingship  grew  as  process 


XXX  CONTENTS 

PACKS 

of  aggregation  advanced  ;  the  comitatus;  the  halford  or  loaf  giver ;    216 
the  gesith  or  companion ;  the  thegnhood  or  nobility  by  service ;    217 
thegnhood  grew  into  central  institution  of  the  state ;   ranks  ever 
open  to  class  beneath  it ;  relation  of  lord  and  man  ;  represented    218 
but  one  element  of  feudalism  ;    trinoda  necessitas ;  feudalism  in 
embryo. 

Early  kingdoms  long  preserved  folk  moots  and  tribal  kings ;  219 
heptarchic  kingdoms  and  the  witenagemot ;  heptarchic  national  220 
assemblies  shrink  up  into  purely  aristocratic  bodies ;  representa-  221 
tive  principle  not  involved. 

5.  Growth  of  National  Unity:  Kingdoms  of  Northern,  Central,  and    222 

Southern  Britain ;    threefold   division  only  broken    down  after 
struggle  of  two  centuries ;    conversion  and  growth  of  unity  in    223 
national  church ;  Latin  Christianity  and  its  conquests  ;  Synod  of 
Whitby,    664 ;    organization   of   English   church    by  Theodore ;    224 
arrived  in  Kent  in  669 ;  first  archbishop  of  entire  church  ;  Theo- 
dore breaks  up  the  great  dioceses  ;  primacy  of  Canterbury  ;  work 
completed  under  Bad  ward  the  Elder  ;  unity  of  church  foreshadows    225 
unity  of  state  ;  church  councils  the  first  national  gatherings. 

Northumbrians    struggle    for    supremacy ;    Mercia's    struggle ;    226 
Wessex's  struggle  ;  Ecgberht's  triumph  ;  from  Ecgberht  to  Eadgar    227 
(829-958)  ;  Danish  invasions  ;   Aelfred  and  the  Danes ;  Peace  of 
Wedmore,  878  ;  the  Danelagh  ;   extinction  of  provincial  royalty  ;    228 
Edgar  the  Peaceful,  sole  and  immediate  king  of  all  the  English. 

6.  Constitution  of  the  Consolidated  Kingdom :   Early  shire  not  to    229 

be  confounded  with  modern  ;  modern  shire  identical  with  primi- 
tive state  ;  historical  origin  of  certain  modern  shires  ;  consolidated    230 
kingdom  an  aggregation  of  shires ;   folk  moot  survives  as  shire 
moot ;  hundred  moot  and  tun  moot ;  the  king  ;  hereditary  prin-    231 
ciple  limited  by  right  of  election  ;   how  king  became  lord  and 
patron  of  his  people ;    movement  from  personal  to   territorial    233 
organization  ;  royal  revenue  ;  constitution  of  the  witan  ;  England    234 
and  Achaia ;    Witan  of  Wessex  becomes  Great  Council  of  the    235 
Empire  ;  history  of  taxation  begins  with  Danegeld  ;  right  of  elec- 
tion and  deposition ;  constitution  of  the  shire  moot ;   training    236 
schools  in  self-government ;  germ  of  representative  system  ;  germ    237 
of  jury  system  ;  officers  of  the  shire  ;  growth  of  immunities  .        .     238 
From  Eadgar  to  William  (958-1066)  ;  lack  of  cohesion  between    239 
central  and  local  powers ;  feudal  tendency  to  disruption  checked 
by  Godwine  ;  local  dissensions  made  Norman  Conquest  possible. 

7.  Norman  Duchy  and  its  Dukes :   Colony  at  Rouen,  911  ;  original    240 

grant  to  Rolf ;  condition  upon  which  it  was  made  ;  an  assembly  241 
of  magnates  ;  lower  courts ;  Norman  nobility  ;  Normans  French  242 
as  to  language  and  law ;  contact  with  Frank  feudalism  ;  its  ele-  243 
ments ;  commendation  and  benefieium;  origin  of  Frank  bene- 
ficiary system  ;  capitulary  of  Kiersi  and  its  effects ;  grants  of  244 
immunity ;  attenuation  of  central  power ;  its  effect  on  William's 


CONTENTS 

PAOB8 

policy  ;  Normans  destitute  of  memorials  of  early  laws  ;  oldest  law  245 

books  ;  world-famous  jurist  of  Pavia,  Laufranc  ;  became  primate  246 
of  England. 

Norman  Conquest  of  England :  Its  advance  gradual ;  application  of  247 
doctrine  of  forfeiture ;   terra  regis;  fusion  of  two  kindred  sys-  248 
terns  of  tenure ;  William  a  national  king  as  well  as  feudal  con- 
queror ;  feudalism  not  accepted  as  a  system  of  government ;  oath  249 
of  homage  and  allegiance  ;  continuity  of  national  assembly  ;  right 
to  elect  king  still  recognized ;  new  feudal  theory  of  hereditary  250 
descent ;    national  assembly  as  court  of  feudal  vassals ;    royal 
household  of  Norman  kings  ;  the  curia  regis;  financial  side  known  251 
as  exchequer ;  six  circuits  of  the  Justiciarii  Itineraries ;  effects  of  252 
Conquest  on  local  organization  ;   the  township  ;  "manor,"  a  de-  253 
pendent  township ;  courts  of  shire  and  hundred  continued  ;  held  254 
"  as  in  King  Bad  ward's  day  and  not  otherwise"  ;  introduction  of 
trial  by  battle. 

Effects  of  Conquest  on  ecclesiastical  organization  ;  deposition  of  255 
native  bishops ;  closer  connection  with  Rome  ;  separation  of  spir- 
itual from  temporal  tribunals ;  Vacarius  at  Oxford,  1149  ;  eccle-  256 
siastical  legislation  limited ;  convocations  of  York  and  Canterbury ; 
Domesday  Survey  ;  taken  by  royal  commissioners  ;  unit  of  inquiry  257 
everywhere  the  manor  ;  Gemot  of  Salisbury  ;  William's  successors ;  258 
loyalty  of  England  to  William  the  Red;  organization  of  military 
tenures  ;  charter  of  Henry  I.  ;  his  marriage  with  Matilda ;  Bishop  259 
Roger  organizer  of  new  fiscal  and  judicial  system ;  the  oath  to  260 
Matilda ;  the  Angevin  marriage ;  election  of  Stephen ;  the  civil  war ; 
Treaty  of  Wallingford ;  death  of  Stephen  and  accession  of  Henry  261 
of  Anjou. 

i.  The  Period  of  Fusion :   Superstructure  Norman,  substructure  Old-  262 

English ;  distinctive  feature  of  Norman  period,  the  curia  regis ;  268 

union  of  royal  and  customary  law  ;  origin  of  trial  by  jury ;  fusion  264 

of  races ;  English  tongue  survived  ;  Latin  in  official  and  judicial  265 
records  ;  French  in  law  literature. 

Henry  II.  and  his  work  of  reform ;  scutage  or  shield  money ;  266 

assize  of  arms ;  the  reign  of  law  ;  conflict  with  clergy  ;  Constitu-  267 

tions  of  Clarendon  ;  reorganization  of  central  and  provincial  sys-  269 

terns  ;  influence  of  the  practice  of  summons ;  fourteenth  article  of  270 
the  Great  Charter ;  distinction  between  lords  and  commons ;  royal 

superseded  by  national  legislation ;  ancient  land  tax ;  origin  of  271 

knights'  fees  ;  taxation  of  personal  property  ;  taxation  and  repre-  272 

sentation  ;  relation  of  the  feudal  array  to  the  ancient  force  ;  begin-  273 

ning  of  the  king's  bench  as  a  distinct  tribunal ;  the  exchequer      .  274 

Assize  of  Clarendon  ;  accusations  in  pre-Norman  period ;  after  275 

the  Conquest ;  the  ordeal ;  Assize  of  Northampton  ;  grand  juries  276 

of  Richard  I. ;  ordeal  superseded  by  petty  jury  in  criminal  cases  ;  277 
jurors,  at  first,  only  witnesses ;  finally  judges  of  facts  detailed  by 

others ;  trial  by  battle ;  origin  of  jury  trials  in  civil  cases ;  four  278 


xxxii  CONTENTS 

FACES 

means  of  proof  known  to  customary  law ;  inquest  of  proof ;  an  279 

instrument  of  royal  law ;  the  community  jurata  ;  recognitions  de-  280 

fined ;  introduced  by  Henry  II.  as  assizes  j  Fortescue's  description  281 

of  jury  system  ;  as  the  fittest  it  survived  ';  •••';'  "*  ....  282 

10.  The  Winning  of  the  Charters :  Encroachments  of  the  curia  regis;  283 

origin  of  the  struggle   for  the    charters ;   parties   to   the    con-  284 
filet ;  growth  of  the  estate  system ;  clergy,  baronage,  and  com- 
mons ;  ecclesiastical  divisions  and  courts ;  diocese  and  county ;  285 
election  of  bishops ;  estate  of  the  peerage  identical  with  House  of  286 
Lords  ;  status  of  bishops  and  abbots  ;  estate  of  the  commons       .  287 

Pressure  of  royal  authority  under  Richard  I.  ;  accession  of  John  288 

and  loss  of  Normandy  ;  John  and  Innocent  III. ;  John  and  the  289 
baronage ;   council  at  St.   Alban's  August  4,  1213 ;  council  at 

St.  Paul's,  25  ;  meeting  at  St.  Edmund's,  November,  1214 ;  Great  290 
Charter  signed,  June  15,  1215. 

Analysis  of  the  Great  Charter  ;  a  treaty  or  compact ;  consum-  291 

mation  of  union ;  efforts  to  fix  limits  of  innovation ;  church  guar-  292 
an  teed   free   elections ;    baronage   relieved   of    feudal   burdens ; 

subinfeudation ;  the  commons ;  merchant  class ;  constitution  of  293 

national  council ;  taxation  ;  common  pleas  fixed  at  Westminster ;  294 

judicial  supremacy  of  king  in  council ;  the  chancellor ;  his  common  295 

law  jurisdiction  ;  his  equity  jurisdiction ;  judicial  clauses  of  the  296 

Great  Charter ;  jury  trials  not  guaranteed ;  due  process  of  law  297 
guaranteed  ;  amercements  ;  writ  of  precipe  ;  criminal  accusations. 

Charter  embodied  programme  of  reform  ;  first  regency  since  298 

Conquest ;  king  can  do  no  wrong ;  representatives  from  shires  and  299 

towns ;  model  Parliament  of  1295 ;  Confirmatio  Cartarum,  No-  300 

vember  5,  1297  ;  Parliament's  exclusive  right  to  authorize  taxation  301 
recognized. 

11.  The  Growth  and  Decline  of  Parliament:  Elected   knights;   the  302 

borough    constitution ;    borough    representatives ;    Westminster 

the  seat  of  government ;  Parliament  divided  into  two   houses ;  303 

clergy  refused  to  be  jointly  assembled ;   Sheldonian  compact  of  304 
1664. 

Early  participation  of  the  commons  in  taxation ;  taxation  in  305 
the  Norman  period ;  representatives  summoned  as  fiscal  expedi- 
ent ;  transition  from  separate  to  general  consent ;  participation  in 

legislation  ;  supply  dependent  on  redress  of  grievances  ;    abuses  306 
growing  out  of  procedure  by  petition  ;  difference  between  a  statute 

and  an  ordinance ;    full  right  of  deliberation ;    right  to   audit  307 

accounts  and  appropriate  supplies ;  impeachment ;  king  can  do  308 

no  wrong ;  right  of  deposition ;  five  substantive  rights  ;  an  unde-  309 
fined  residuum  of  legislative  and  judicial  power  remains  to  king  in 
council ;  definition  of  parliamentary  privileges. 

House  of  Lancaster ;  two  vital  principles  defined  in  1407  ;  conn-  310 

cil  to  be  controlled  by  Parliament ;    regularly  paid  and  sworn  311 
councilors. 


CONTENTS  Mliii 

fSMBi 

House  of  York;  collapse  of  immature  parliamentary  system;  312 

indefeasible  hereditary  right ;  a  policy  of  peace ;  judicial  powers  313 

of  council  expanded ;    Edward  converts  it  into   an  engine  of  314 
tyranny  ;  real  successor  of  Edward  IV.,  Henry  VII. 

12.  The  Tudor  Monarchy :  Original  jurisdiction  of   king  in  council ;  315 

jurisdiction  of  council  first  narrowed,  then  widened  by  statute ; 
Act  of  3  Henry  VII.,  c.  1,  redefining  powers  of  council ;  vested  in    316 
special  committee  ;  powers  of  special  committee  revested  in  coun-    317 
cil ;  court  in  its  final  form  ;  its  procedure. 

Henry  VII.  and  his  threefold  claim  of  title ;  his  declaration  in    318 
Parliament ;  descent  of  crown  removes  all  effects  of  attainder ; 
Parliament's  declaration  as  to  title  ;  security  of  subject  under  king    319 
de  facto  ;  new  nobility  ;  Henry  VII.  and  Parliament ;  his  financial    320 
policy ;  benevolences. 

The  English  Renaissance  ;  overthrow  of  parliamentary  institu-    321 
tions  on  the  Continent ;  character  of  the  struggle  in  England  ;  older 
forms  of  constitutional  life  never  abolished. 

13.  Henry  VIII.  and  the   Break  with   Rome :   Holy  Roman  Empire ;    322 

theory  of  medieval  Empire ;  system  of  appeals ;  Wolsey  and  323 
the  divorce  ;  Cromwell's  policy  of  secession  ;  Reformation  Par-  324 
liament,  November,  1529 ;  summary  of  the  work  of  its  six  ses-  325 
sions ;  Act  of  Supremacy  the  culmination  ;  single  allegiance ; 
succession  act  and  supremacy  oath  ;  Cromwell,  vicar-general ;  326 
Six  Articles  ;  Parliament  tool  of  the  crown  ;  church  a  department  327 
of  state. 

Henry's  secular  legislation  ;  relaxation  of  feudal  restraints ;  act    328 
as  to  uses  and  wills  ;  act  establishing  right  of  devise  ;  statute  of 
limitations  ;  superstitious  uses  and  common  recoveries. 

Henry's  final  arrangements  ;    his  three  succession  acts  ;   final    329 
disposition  by  will. 

14.  Edward  VI.  and  the  English  Reformation :  Minorities  of  Henry    330 

III.  ;  Edward  III.  ;  Richard  II.  ;  Henry  VI.  ;  Edward  V.  ;  four 
principles  then  distinctly  recognized  as  to  regencies ;  Somerset ;    331 
Cranmer. 

Protectorate  of  Somerset ;  patents  to  bishops  ;  crown,  not  pope,    332 
source  of  jurisdiction  ;  right  to  visit  and  reform  ;  Six  Articles  and    333 
other  acts  repealed ;    common  law  as  to  heresy  revived ;   mass 
superseded  by  communion  ;  treasons  act  of  26  Henry  VIII.,  c.  13,    334 
repealed  and  act  of  25  Edward  III. ,  c.  3,  restored  ;  repeal  of  act 
giving  royal  proclamations  force  of  law ;  chantry  lands  given  to 
king ;  marriage  of  priests ;  Act  of  Uniformity  and  Book  of  Com-    835 
mon  Prayer ;  "  order  of  communion  "  ;  fall  of  Somerset,  1549. 

Government  of  Warwick ;  mercenaries  employed  in  England  ;  no    336 
change  of  policy  ;  riot  act  of  3  and  4  Edward  VI.,  c.  10  ;  second  Act 
of  Uniformity  ;   the  Forty-two  Articles  ;  attempt  to  codify  eccle-    337 
siastical  law  ;  Edward's  death  and  the  succession  ;  Lady  Jane  Grey 
and  Dudley  ;  will  executed  June  21 ;  Edward  died  July  6,  1563. 


xxxiv  CONTENTS 

PAGES 

16.  Mary  and  the  Catholic  Reaction:  First  two  stages  of  English  338 
Reformation  ;  Mary  proclaimed  by  the  council ;  Gardiner's  con-  339 
servative  policy ;  Mary's  first  Parliament ;  treasons  act  of  25 
Edward  III.  restored ;  queen's  legitimacy  ;  repeal  of  statutes  as  340 
to  creed  and  ritual ;  Henry's  form  of  service  reestablished  ;  Act  341 
of  Supremacy  not  repealed. 

Cardinal  Pole  ;  a  marriage  bill  passed,  April,  1554  ;  also  an  act    342 
to  legalize  Mary's  position  as  queen  regent ;  means  to  secure  a 
compliant  Parliament ;  papal  supremacy  reestablished  ;  contents    343 
of  act  embodying  new  concordat ;  security  to  holders  of  church 
property  ;  succession  and  regency  bills  ;  heresy  statutes  revived  ;    344 
Gardiner's  death  ;  papal  prejudice  against  Pole ;  loyalty  of  nation 
to  Elizabeth  ;  Mary  died,  November,  1558. 

16.  Elizabeth  and  the  Final  Settlement:  William  Cecil,  Lord  Burgh-    345 

ley ;  first  Parliament,  January,  1559 ;  summary  of  act  restoring    346 
royal  supremacy;  new  Act  of    Uniformity  and  "low  church" 
prayer  book  of   Edward   VI. ;    after  enacting  other  important    347 
statutes,  Parliament  dissolved,  May  8,  1559. 

Struggle  of  Elizabeth  with  Catholic  party  ;  regulation  of  worship    348 
assumed  to  be  a  state  function  ;  statutes  to  punish  offense  of  non- 
conformity ;    outward  conformity  checked  by  papal  brief ;    the    349 
counterblast ;  legal  status  of  new  bishops  challenged ;  responses 
to  bull  of  deposition. 

Struggle  of  Elizabeth  with  Puritan  party  ;  its  origin ;  driven  to    350 
open  schism  and  punished  ;  Whitgift  and  the  high  commissions ; 
Mar-Prelate  tracts ;  permanent  Court  of  High  Commission ;  ex    351 
officio  oath ;  conflict  with  courts  of  common  law ;  abolished  by 
Long  Parliament. 

Constitution  of  the  council  in  the  days  of  Elizabeth ;  divided    352 
into  committees;  Robert  Cecil  "principal  secretary  of  state"; 
censorship  of  the  press ;   as  an  administrative  body  ;  center  of    353 
gravity  shifted  from  Parliament  to  council;  new  conception  of 
liberty  born  of  Renaissance  and  Reformation  ;  entered  into  middle 
classes  ;  change  began  under  Edward  VI.  ;  powers  of  Parliament    354 
revived  ;  monopolies  ;  beginning  of  the  conflict. 

17.  The  Stuarts  and  the  Puritan  Revolution  of  1640 :  Conciliar  sys-    355 

tem  survived  unimpaired ;   conflict  with  parliamentary  system ; 
parliamentary  privileges  asserted  ;  persecution  of  Puritans  and    356 
Catholics ;    Gunpowder  Plot ;    Bate's    case ;  the    post-nati ;   the    357 
"Great  Contract";  refusal  to  redress  ecclesiastical  grievances; 
judges  asked  to  define  ordaining  power ;  dissolution  of  February  9,    358 
1611. 

"The  Addled  Parliament";   subject  of  impositions  revived;    359 
revival  of  all  forms  of  royal  taxation  ;  benevolence  resisted  by 
Oliver  St.  John ;   prosecution  of  Peacham ;   Coke's  courageous    360 
responses ;  dismissed  as  chief  justice. 

Impeachment  revived  ;  questions  of  privilege  ;  right  of  delibera-    361 


CONTENTS  xxxv 


tion  ;  protest  of  December  18,  1621 ;  impeachment  of  Middlesex  ; 
an  act  regulating  monopolies. 

Charles  and  Buckingham  ;  Laud  as  ecclesiastical  guide ;  the  362 
king's  obstinacy ;  recriminations  in  first  Parliament ;  customs 
levied  by  royal  warrant ;  ministerial  responsibility  ;  Buckingham  363 
impeached ;  Eliot  and  Digges  imprisoned ;  use  of  the  money  364 
power;  royal  taxation;  case  of  the  five  Knights,  1627;  "due  365 
process  of  law"  ;  origin  of  ship  money. 

Sir  Thomas  Wentworth ;  Petition  of  Right ;  Rolle's  case ;  the  366 
religious  grievance  ;  power  of  king  to  force  adjournment  resisted  ;  367 
ship  writs  to  inland  counties ;  Hampden  ;  judgment  against  him ;  368 
Laud ;  Strafford ;  Pym  and  Hampden ;  exclusive  right  of  house  369 
to  originate  money  bills  ;  Short  Parliament,  1640. 

Death  grapple  between  conciliar  and  parliamentary  systems;    370 
Long  Parliament,  November,  1640 ;  leadership  of  Pym  ;  his  duel 
to  the  death  with  Strafford  ;  his  impeachment  and  attainder  ;  trial    371 
of  Laud ;  his  attainder ;  judgment  against  Hampden  annulled  ;    372 
Triennial  Bill ;   Star  Chamber  and  High  Commission  abolished ; 
permanent  work  of  Long  Parliament;   origin  of  parliamentary    373 
parties ;  Grand  Remonstrance ;  attempt  on  five  members  ;  civil    374 
war  began  in  January,  1642. 

18.  Commonwealth  and  Protectorate:  Great  upheaval  broken  into  four    375 

stages ;  reforms  during  first  ten  months  of   Long  Parliament ; 
struggle  ending  with  Grand  Remonstrance  ;  triumph  of  Presbyte- 
rian over  Episcopal  system ;  triumph  of  independents  over  Pres-    376 
byterians ;    all  independents  combined  in  New  Model ;    "  The 
Agreement  of  the  People  "  ;  prototype  of  all  American  constitu-    377 
tions ;  completed  January  15,  1649 ;   Rump  retained  by  army ; 
enactments  of  commons  have  force  of  law. 

Rump  cleared  the  way  for  first  republican  constitution  ;  monarchy    378 
and  House  of  Lords  abolished,  February  7, 1649 ;  powers  of  council 
of  state ;   judiciary  reorganized ;    Rump  dissolved,  April,   1653 ;    379 
military  dictatorship  ;  "Instrument  of  Government,"  1653  ;  "An 
Act  of  Government,"  1657. 

Richard  Cromwell,  September,  1658  ;  house  dissolved,  April,    380 
1659 ;    Rump  restored  in  May ;    expelled  in  October ;    General 
Monk,  1660 ;  excluded  members  admitted ;  Long  Parliament  dis-    381 
solved,  March  16  ;  Convention  Parliament  met,  April  25  ;  return 
of  Charles  II. 

19.  Restoration  and  Revolution  of  1688 :  Continuity  of  development    382 

as  affected  by  revolutionary  epoch ;   monarchy  restored,  not  in 
the  form  in  which  it  was  overthrown ;   effect  of  new  ideas  gen-    383 
erated  during  upheaval ;  beginnings  of  the  modern  constitution ; 
return  to  the  monarchical  system  ;    Charles's  declaration   from    384 
Breda ;  Convention  declared  to  be  "  the  two  houses  of  Parlia- 
ment." 
Reorganization  of  finances;   military  tenures  abolished;    old    385 


xxxvi  CONTENTS 

PAGES 

Tudor  subsidy  abandoned  ;  a  system  of  balance ;  Clarendon ;  his    386 
policy  of  reconstruction  ;  second  Parliament,  May,  1661 ;  notable 
acts ;  rights  of  appropriation  and  audit ;  the  Cabal ;  Ashley  ;  the    387 
country  party ;  Danby  and  his  impeachment ;  censorship  of  the 
press ;   Habeas  Corpus  Act ;  question  of  succession  ;  first  exclu-    388 
sion  bill ;   Whigg  and  Tories ;   fifth  and  last  Parliament,  1681 ;    389 
Whig  chiefs  attacked  by  the  judicial  power;    Charles  died  a 
Catholic. 

Passive  obedience  and  social  contract  theory ;  James  dissembled    390 
at  the  outset;  taxation;  Monmouth  rebellion  and  "bloody  cir-    391 
cuit"  ;  Test  Act  assailed;  commons  demanded  recall  of  commis- 
sions issued  in  defiance  of  it ;  origin  and  character  of  dispensing    392 
power ;  Thomas  v.  Sorrel ;  Godden  v.  Hales ;  attempt  to  reverse 
results  of  Revolution  of  1640 ;  practical  reestablishment  of  High    393 
Commission  ;  theory  of  its  survival ;  four  Catholic  lords  sworn  of 
the  council ;  Declaration  of  Indulgence  ;  trial  of  bishops  for  sedi-    394 
tious  libel,  June,  1688  ;  birth  of  a  male  heir  to  James ;  Protestant 
leaders  discredited  the  fact ;  invitation  to  William,  June  30 ;  he    395 
landed  at  Torbay,  November  5. 

Second  Convention  Parliament ;    absence  of  the  king's  writ ;    396 
expedients  employed  by  William  ;  Convention  declared  itself  to  be 
"  the  two  houses  of  Parliament "  ;  deposition  of  James  and  election 
of  William  and  Mary  ;  pre-Norman  precedents ;  feudal  theory  of    397 
kingship  ;  supplemented  by  divine  right  and  obedience  ;  division 
of  parties ;  appeal  to  philosophy  of  Hobbes  ;  social  contract  theory    398 
embodied  in  resolution;  commons  insist  upon  a  declaration  of 
principles  ;  Declaration  of  Bight ;  a  summing  up  of  the  Law  of  the    399 
Constitution  ;  recent  grievances,  religious  and  political,  defined  ; 
summary  of  acts  declared  illegal ;  parliamentary  settlement  of    400 
succession ;  a  formal  Bill  of  Rights  ;  freedom  of  speech  ;  regula- 
tion of  commerce;    supply  and  appropriation;    "Civil  List";    401 
annual  appropriation  bills ;  Triennial  Bill  of  1694 ;   Mutiny  Act 
of  1689 ;   two  vital  principles ;    every  soldier  a  citizen ;   court-    402 
martials  subject  to  review. 

Act  of  Settlement  capstone  of  Revolution  ;  source  of  title  of    403 
House  of  Hanover ;  eight  additional  articles  for  security  of  "re- 
ligion, laws,  and  liberties  "  ;  Toleration  Act  and  slow  growth  of    404 
religious  liberty  ;  emancipation  of  Catholics ;  Stephen's  epitome. 

Taxation  and  finance  ;  subsidy  superseded  by  assessments  ;  the  405 
rate  system ;  origin  of  land  tax ;  origin  of  national  debt ;  Bank  of  406 
England  incorporated,  1694. 

10.  Growth  of  the  Modern  Ministerial   System :  Conditions  under    407 
William   and   Anne ;    lack  of  internal  cohesion ;    statesmen  of 
Revolution    failed   to    meet    difficulty ;    change    brought   about    408 
through  a  set  of  tacit  understandings  ;  things  of  which  the  positive 
law  knows  nothing  ;  cabinet  has  no  legal  existence  ;  mainspring 
of  modern  constitution  ;  conventional  as  distinguished  from  written 


CONTENTS  xxxvii 

PAOE8 

code  embodied  in  certain  documents  ;  no  distinction  between  law    409 
and  constitution  prior  to  Revolution ;  legal  character  of  kingship 
then  reestablished  ;  legal  prerogatives  subject  to  ministerial  con-    410 
trol ;  acts  may  be  unconstitutional  and  yet  not  illegal. 

Ministries  of  William  and  Anne  ;  a  politically  united  group  of    411 
dominant  party ;  duty  to  resign  office  ;  an  interval  of  anarchy ; 
Anne  last  to  exercise  veto  power ;  her  outcry  against  party  gov-    412 
ernment ;  cabinet  system  stimulated  by  accession  of  George  I. ;    413 
first  simultaneous  change  of  whole  ministry. 

Sovereignty  now  vested  in  the  House  of  Commons ;  crown  and    414 
legislature  employ  a  common  agent ;    three  basic  principles  of 
parliamentary  government ;  cabinet  system  unpremeditated  out-    416 
come  of  progressive  history  ;  two  epochs  of  growth  ;  Walpole  first 
prime  minister  in  modern  sense  ;  forced  to  resign  by  adverse  vote  ; 
a  minister  in  conflict  with  majority  of  colleagues. 

George    III.'s    assault    upon    cabinet    system;     "the    king's    416 
friends";   "cabinet"  mentioned  neither  by  Blackstone  nor  De 
Lolme  ;  presidential  office  in  United  States  modeled  after  kingship    417 
of  George  III.  ;  George  III.  conquered  by  Pitt ;  a  real  chief  of 
state  ;  destroyed  system  of  independent  departments. 

Reform  of  representative  system;  elder  Pitt's  efforts  in  1766,  418 
1770  ;  Stanhope,  1774  ;  Cartwright  and  Wilkes,  and  others  ;  Lord  419 
John  Russell  and  reform ;  his  defeats  ;  Peel's  declaration  ;  cause  420 
seemed  to  be  lost  at  close  of  reign  of  George  IV. 

William  IV.  and  Reform  Bill  of  1832  ;  Earl  Grey's  first  Reform    421 
Bill,  1831 ;  second  rejected  by  lords ;  third  Reform  Bill  of  1832 ; 
one  hundred  and  forty-three  seats  redistributed  ;  county  franchise ; 
borough  franchise  ;   registration ;    Representation  of  the  People    422 
Act,  1867  ;  Ballot  Act  of  1872  ;  equalization ;  Representation  of    423 
the  People  Act,  1884 ;  Redistribution  of  Seats  Act,  1886 ;  mem- 
bership of  house  not  materially  increased  ;  increase  in  membership    424 
of  upper  house  ;  a  revising  and  suspending  chamber. 

Summary  of  growth  of  ministerial  system  ;  center  of  gravity  of    426 
state  shifted  by  Revolution  of  1688  ;  new  principle  of  sovereignty 
vested  in  electorate ;   change  concealed  beneath  ancient  forms ;    426 
work  of  George  III.  ;  doctrine  of  "checks  and  balances"  ;  two 
conceptions  contrasted;  old  literary  theory  of  coordination  has    427 
yielded  to  accomplished  facts;  medieval  monarchy  transformed 
into  hereditary  republic. 

CHAPTER   V 
ENGLISH  LAW  IN  THE  UNITED   STATES 

1.  Effects  of  Physiography  on  State  Building  in  Great  Britain  and    428 

the  United  States. 

2.  Typical  English  State  in  America  :  Strength  of  English  nation  as    429 

a  colonizing  nation  ;  process  of  aggregation  in  the  United  States  ; 


xxxviii  CONTENTS 

PAGES 

township  as  the  active  local  unit ;  county  as  the  active  local  unit ;  430 
colonies  mere  corporations  created  by  the  crown  ;  royal  colonies  — 

Virginia ;  charter  colonies  —  Massachusetts ;  proprietary  system  —  431 

Maryland ;    foundation  of  colonial  fabric  English  law ;  heart  of  432 
North  America  granted  as  if  it  were  a  royal  manor ;  American 

theory  of  colonial  rights ;  ordaining  power  of  king  in  council ;  433 
conflict  between  English  and  colonial  theories. 

Colonies  transformed  into  sovereign  states ;  substantial  repro-  434 
ductions  of  English  kingdom ;   substructure  the  same ;  central 
organization ;    division  of  powers ;    legislative  organs ;    judicial  435 
organization  ;  English  jury  system  ;  admiralty  jurisdiction  ;  Eng- 
lish law  as  a  birthright ;  a  composite  of  five  elements ;  English  436 
law  continued  in  force  in  all  the  states  from  certain  dates ;  437 
English  decisions  authoritative. 

3.  Constitutional  Limitations  an  American  Invention :    Their  origin  438 

in  colonial  charters ;  charters  of  Connecticut  and  Rhode  Island ; 

power  to   declare  a  legislative  act  void ;   judge-made  law ;   no  439 

express  authority  in  federal  constitution  to  delare  an  act  void ;  440 
Marshall's  argument  in  support  of  the  right, 

4.  A  Federal  Government  acting  directly  on  the  Citizen  an  American  441 

Invention:  History  of  Greek  federalism  a  closed  book  in  1787; 

Teutonic  federations ;  requisition  system ;  impotence  of  Articles  442 
of  Confederation. 

The  unique  creation  of  1789  ;  Tocqueville ;  Gladstone  ;  "  a  wholly  443 

novel  theory";  basis  of  four  plans  submitted  to  Convention  of  444 

1787  ;  were  they  drawn  from  a  common  source  ?  ;  Pelatiah  Web-  445 

ster's  invention,  February  16,  1783 ;  his  account  of  it ;  "  easier  to  446 

form  a  new  constitution  than  to  mend  the  old  one  "  ;  first  to  pro-  447 

pose  the  calling  of  a  convention ;  Bancroft's  admission ;  Madison's  448 
admission. 

Pelatiah  Webster  as  a  writer  on  finance  ;  financial  studies  pre-  449 

lude  to  invention  ;   the  supreme  power  of  taxation ;    adequate  450 

power  to  be  vested  in  each  department ;  supremacy  of  federal  law ;  451 
a  supreme  and  self-executing  federal  government. 

A  strictly  organized  government ;    division  of  powers  in  a  fed-  452 

eral  state ;    organization  of  the  executive  power ;    a  bicameral  453 

federal  legislature ;  judicial  organization ;  reserved  powers  of  the  454 

states ;  three  path-breaking  ideas ;  inventor  conscious  of  magni-  455 

tude  of  undertaking  ;  four  "  plans  *'  mere  conduits        .        .        .  456 

A  department  of  commerce  proposed ;  Webster's  faith  in  the  457 
tribunal  of  history ;  no  invention  without  an  inventor. 

5.  The  New  National  Citizenship :  Origin  of  interstate  citizenship ;  458 

the  form  it  assumed  in  constitution  of  1789 ;  no  primary  federal  459 
citizenship  prior  to  Fourteenth  Amendment ;  first  defined  therein  ; 

journal  of  committee  produced  in  San  Mateo  Case  ;  lack  of  guar-  460 
antees  against  state  action  ;  restraints  upon  national  action  ;  "  due 

process  of  law"  and  Magna  Carta;  as  interpreted  by  Coke  and  461 


CONTENTS  xxxix 

PJLOU 

his  followers,  and  by  Supreme  Court  of  United  States  ;  equal  pro-    462 
tection  of  the  laws. 

Children  born  on  American  soil  of  foreign  parents  ;  Constitution    463 
interpreted  in  light  of  English  law  ;  feudal  rule  of  allegiance ; 
"  terms  of  art " »"-.-.        .        .    464 

CHAPTER   VI 
ROMAN  AND  ENGLISH  LAW  COMBINED 

1.  Survival  of  Roman  Private  and  English  Public  Law :  Adoption    465 
of  English  public  law  in  areas  preoccupied  by  Roman  private  law  ; 
typical  law  system  of  the  future. 

3.  Reproduction  of  Spanish  Law  in  America  :  Council  of  the  Indies ;    466 
provincial  organization  ;  courts  of  justice ;  privileges  of  corpora- 
tions ;  Siete  Partidas  the  basis ;  Eecopilaci6n  de  Leyes  de  los    467 
Reynos  de  las  Indiaa;  supplemented  by  laws  of  Castile      •.        .     468 

3.  Reproduction  of  Portuguese  Law  in  Brazil:  Dom  Pedro  proclaimed    469 

in  1822  ;  Portuguese  claim  to  first  codification  in  modern  Europe  ; 
the  "  Philippine  Code." 

Portuguese  law  fundamentally  Roman ;  Portuguese  Romanists    470 
superseded  by  French  commentators  ;  Ordenafies  Philippinas  of 
1603  substructure  of  law  in  Brazil ;  Penal  Code  of  1830  and  Com- 
mercial Code  of  1850 ;   Esbogo  de  Codigo  Civil  a  mere  project ;    471 
Senator  Nabuco  ;  German  influence  in  Brazilian  law  schools  ;  Con- 
stant and  the  Poder  Moderador. 

4.  Severance  of  Spanish  Colonies  from  Mother  State :   Oppressions    472 

of  colonial  system  ;  loyalty  of  colonists ;  revolutionary  movements ; 
independence  declared  in  July,  1823 ;   popular  governments  on    473 
North  American  plan. 

5.  Constitutions  of  Single  States :   Guatemala ;  Salvador ;  Nicara-    474 

gua ;  Costa  Rica  ;  Honduras  ;  Panama  ;  Uruguay  ;   Chili ;   Peru  ; 
Ecuador ;  Colombia  ;  Paraguay  ;  Bolivia  ;  three  chambers  ;  Eng-    476 
lish  constitutional  ideas  the  basis  ;  division  of  powers  ;  constitu- 
tional guarantees ;  trial  by  jury  ;  imperfect  religious  liberty ;  right    476 
to  declare  statutes  void  ;  its  opponents ;  its  advocates  ;  bicameral    477 
system  accepted  in  South  America  ;  rejected  in  Central  America ; 
lack  of  strength  in  local  organization. 

6.  Constitutions  of  Federal  States  :  Mexico  ;  Argentine  Nation ;  United    478 

States  of  Brazil ;  United  States  of  Venezuela  ;  state  autonomy  in  480 

Venezuela  and  Mexico  ;  weakness  in  the  substructure  ;  the  effort  482 
to  remove  it. 

Superstructures  of  federal  states  ;  division  of  powers  ;  extraordi-  483 
nary  powers  of  senate  ;  interstate  commerce  ;   Permanent  Depu- 
tation ;  judicial  system ;   a  formal  bill  of  rights ;  suspension  of  484 
guarantees ;  limitation  of  judicial  decisions ;   writ  of  Amparo ;  486 
trial  by  jury ;  abolished  as  to  press  offenses  ;  in  use  in  Federal 
District  of  Mexico ;    unanimous  verdict  not  required  ;    English  486 


xl  CONTENTS 

PAGES 

public  law  the  basis ;  three  fundamentals  accepted  tentatively ;  487 
Roman  private  law. 

7.  Latin-American  Codes  :  A  great  invention 488 

8.  Roman-Dutch  Law  in  South  Africa,  Ceylon,  and  British  Guiana:  489 

Natal ;  Orange  Free  State  ;  origin  and  nature  of  Roman-Dutch  law ; 
influence  of  canon  law ;  of  feudal  law ;   Roman  law  imposed  by    490 
William  II. ;  modified  by  Placaats  or  Ordinances ;  special  customs ; 
abrogation   through  disuse ;    alterations  after   importation  from    491 
Holland. 

Roman-Dutch  jurists ;  universities  of  Leyden  and  Utrecht ;  492 
Gail ;  Grotius ;  Van  Leeuwen ;  Paul  Voet ;  John  Voet ;  Van  der  493 
Linden  ;  Dutch  legislation  after  Napoleon. 

9.  Roman  Law  in  Scotland  :  Few  Celtic  survivals  ;  similarity  of  Scotch    494 

and  English  law  in  fourteenth  century ;  Hegiam  Majestatem  •  new    496 
influences  at  work ;  Roman  law  came  in  like  a  flood  in  sixteenth 
century ;   weakness  of  local  courts ;   centralization  of  justice,  — 
Court  of  Session;  Skene's  complaint;  Roman  law  as  "the  com-    496 
mon  law "  ;  recognized  in  Treaty  of  Union ;  force  of  precedents ;    497 
English  influences  in  nineteenth  century. 


PAKT  II 
ANAL  YTICAL 

CHAPTER  VII 
LAW  PROPER  OR  STATE  LAW 

1.  Law  Proper  or  State  Law  Defined :  Jurisprudence  concerned  only    501 

with  positive  law  ;  Hobbes's  definition ;  Austin's ;  the  word  "  com- 
mand "  the  key  ;  state  as  ultimate  source  of  law ;  law  proper  should    502 
be  termed  state  law  rather  than  municipal;  how  the  latter  term 
should  be  limited. 

2.  The  State  and  its  Internal  Sovereignty:    Internal  and  external    503 

sovereignty  contrasted  ;  the  state  defined  ;  Bentham  and  the  modern 
English  theory ;  constitutions  of  single  states  as  defined  by  Greek    504 
philosophers ;  division  of  state  law  into  public  and  private ;  legality 
imparted  by  state  sanction. 

3.  Three,  and  Only  Three,  Sources  of  Law :  Origin  of  custom  or  usage ;    605 

when  it  becomes  the  basis  of  state  law ;  customary  law  at  Rome 
and  in  England ;   its  affinity  with  religion  and  theology ;  their    506 
abiding  influence ;  the  people  as  makers  of  law. 

Recognition  of  customary  rules  by  state  authority  ;  popular  con-    507 
science  superseded  by  judicial  conscience ;    the  praetor  and  the 
perpetual  edict ;  jus  honorarium  the  pupil  of  jus  civile  ;  the  chan-    608 
cellor  and  his  equitable   jurisdiction ;    Cottenham ;    Hardwicke ; 
Nottingham  ;  Eldon  ;  unification  of  English  bifurcated  system ;  a    609 
radical  proposal. 


CONTENTS  ill 

PACKS 

English  judge  limited  to  concrete  case  ;  the  praetor  spoke  gen-    510 
erally  ;  bound  by  statutes ;  stare  judicatis  in  early  Roman  law  ; 
Constitution  of  Justin ;  decided  cases  as  precedents  in  England ;    511 
in  the  United  States ;   difference  between  theory  and  practice ; 
judge-made  law  in  England  and  the  United  States ;  development  of    512 
jurisdiction  of  Supreme  Court  of  the  United  States. 

Jurists  as  makers  of  private  law  in  earlier  times  ;  remedial  equity    513 
everywhere  older  than  remedial  legislation ;  direct  Roman  legisla- 
tion ;  direct  English  legislation ;  Glanvill  and  Bracton  ;  Accursi  of    514 
Bologna  ;  Roman  and  English  statutes  contrasted  ;  codification  at    516 
Rome  and  in  England  ;  codification  in  the  United  States. 

Difference  between  the  fabrication  of  a  rule  and  its  adoption ;  517 
state  recognition  of  a  custom  ;  a  state  has  but  two  articulate  organs  518 
of  legislation  ;  subordinate  legislatures. 

4.  Law  as  the  Creator  and  Preserver  of  Legal  Rights :  Kant,  Savigny,    519 

Krause  and  Ahrens,  Bacon  and  Locke,  Hobbes,  Bentham,  Spencer, 
Amos,  Holland ;  four  cardinal  conceptions ;  the  state  denned  ;  posi-    520 
live  law  defined ;  legal  duties  defined  ;  no  matter  how  iniquitous    521 
a  positive  law  may  be  ;  moral  and  legal  rights  distinguished ;  Som- 
mersett's  case  ;  Mansfield's  definition  of  positive  law ;  substantive    522 
law  and  adjective  law. 

5.  Division  of  Law  Proper  into  Public  and  Private :  Recognized  by    523 

Aristotle  ;  restated  by  Roman  jurists ;  Holland's  statement ;  pri-    524 
vate  person  defined ;  public  person  defined  ;  classification  of  law  ; 
same  act  may  violate  public  and  private  right ;  difference  between    525 
a  tort  and  a  crime. 

Private  only  typically  perfect  law ;  sovereign's  rights  and  duties  ;    526 
in  English  system ;    in  American  system ;   no  jurisdiction  where    527 
obligation  is  political  ;  the  court  of  claims  ;  jurisdiction  localized  ;    528 
division  of  law  into  public  and  private  more  ancient  than  division 
into  substantive  and  adjective. 

6.  Private  Law  :  Right  presupposes  duty  ;  legal  right  defined  ;  right  as    529 

correlative  of  duty  not  familiar  in  early  law  ;  Bentham  and  Austin ;    530 
everything  now  defined  in  terms  of  "right"  ;  elements  of  a  legal 
right ;  how  the  nature  of  a  right  varies. 

Rights  against  all  the  world ;  jus  in  rem  and  jus  in  personam  dis-    531 
tinguished  ;  Hugo's  expressive  phrase  ;  right  to  freedom  and  safety  ; 
the  terms  "inalienable"  and  "innate";  right  to  life;  freedom    532 
from  menace,  assault,  and  false  imprisonment ;  freedom  of  dis- 
cussion ;  definitions  by  Odgers  and  Dicey  ;    right  to  reputation  ; 
Roman  classification  of  insults ;    necessity  for  wrong  intention ;    533 
English  law  of  defamation ;    its  basic  principle ;    necessity  for 
falsity ;  justification  must  be  pleaded  specially  ;  privileged  state-    534 
ments  classified ;  malicious  prosecution  ;  its  antiquity  in  Roman    535 
and  English  law ;  infliction  of  costs ;  use  of  waters  and  highways ; 
right  to  pursue  one's  occupation  ;  Keeble  v.  Hickeringill ;  Allen  v.    536 
Flood ;  Quinn  v.  Leathern  ;  case  of  William  Adair ;  constitutionality    537 


xlii  CONTENTS 


of  act  assailed  because  repugnant  to  Fifth  Amendment ;  rela-  538 
tive  rights  of  employer  and  employed ;  equality  of  right  between  540 
employer  and  employee  ;  the  court's  conclusion  ....  541 

Commercial  competition ;    Gloucester  Grammar  School    Case ;    642 
Mogul  Steamship  Co.  v.  McGregor ;  unfair  competition  as  to  trade- 
marks and  the  like. 

Possession ;  pursuer  of  wild  animals ;  of  fish ;  of  mammals ;  543 
detentio  and  possessio  distinguished ;  only  possession  protected  544 
by  Interdicts ;  the  animus  domini ;  Savigny's  view ;  Holland's  545 
criticism  ;  Ihering's  attack  ;  Holmes's  comment ;  possessory  rem-  546 
edies  granted  by  Teutonic  law ;  all  bailees  entitled ;  occupatio  647 
in  international  law  ;  res  nullius  in  Roman  law  ;  doctrine  applied 
to  partition  of  New  World. 

Ownership ;  extent  of  the  owner's  interest ;  things  to  which  548 
ownership  may  extend  ;  acquisition,  original  or  derivative ;  owner-  549 
ship,  absolute  and  qualified. 

Immunity  from  fraud ;  dohis  mains  in  Roman  law ;  actio  de  550 
dolo ;  fraud  as  defined  in  English  and  American  law  ;  Lord  Her-  551 
schell's  statement ;  Pollock's  opposition. 

Family  rights  incident  to  marriage  ;  polygamous  and  incestuous    552 
marriages;    "free  marriage"   at  Rome;    manus  and  its  conse- 
quences ;    its  abolition ;   emancipated  Roman  wife ;   marriage  de-    553 
fined  by  Modestinus ;  a  civil  act  without  state  intervention  ;  Council 
of  Trent ;  its  indirect  influence  in  England ;  canon  and  common    554 
law ;  consorts  one  person  in  law ;  actions  for  and  against  wife ;    555 
influence  of  courts  of  equity  ;  final  emancipation  by  Parliament.          556 

Marriage  status  in  English  and  American  law ;  analogous  rights    657 
of  husband  and  wife  ;  parental  rights  and  duties ;  seduction  ;  tutor 
or  guardian ;  right  of,  as  defined  by  Servius ;   master  and  slave ;    658 
abolition  of  slavery  and  its  effects  on  history  of  law. 

Rights  available  against  determinate  persons;  "obligations";  559 
what  the  term  embraces  ;  five  sources  of  obligations ;  "  contract "  660 
defined ;  rights  of  third  parties ;  Savigny's  analysis ;  four  requisites  561 
to  validity  ;  interpretation  or  construction  ;  basis  of  classification  ;  562 
a  logically  convenient  arrangement. 

Obligations  quasi  ex  contractu  ;  arise  ex  lege  ;  Ulpian  and  Gains ;    563 
Police  Jury  v.  Hampton  ;    Moses  v.  Macfarlen  ;   not  an  "  implied 
contract"  ;  obligations  ex  delicto ;  furtum;  rapina;  damnum  in- 
juria  datum;  injuria;  examples  of  obligations  quasi  ex  delicto; 
origin  of  modern  law  of  torts  and  negligence. 

Gaius  and  legis  actiones ;  the  sacramentum ;  functions  of  the  566 
judex ;  technicality  and  literalism ;  substitution  of  formulary  pro-  667 
cess ;  praetor  empowered  to  invent  new  forms  of  action ;  subtle 
use  of  fiction  to  create  new  rights  ;  formulary  system  finally  wiped  668 
out  by  Constans ;  magistrate  and  judge  henceforth  one  person ;  569 
survival  of  general  principles  as  to  obligations  ;  summary. 

Roman  phenomena  reproduced  in  English  remedial  law ;  three    570 


CONTENTS  xliii 

PAGES 

stages  in  the  transition  ;  distress  as  a  survival  of  self-help  ;  trial  by    671 
battle  and  the  sacramentitm  ;  centralization  of  justice  and  the  writ 
process ;  chancery  as  the  source  of  writs  ;  oral  formalism  supplanted 
and  reenforced  by  written  ;  Henry  III.  and  the  golden  age  of  forms ;    672 
Bracton  and  remedial  law  ;  equilibrium  between  right  and  remedy 
disturbed;  power  of  chancellor  curtailed ;  Stat.  West.  II.,  c.  24,  and    673 
its  effect ;   Bracton's  classification  of  writs ;   Roman  classification 
based  on  legal  duty ;   Blackstone  followed  Roman  institutional    674 
writers  ;    actions  personal,  real,   and  mixed ;    dying  out  of  real 
actions ;    procedure  too  cumbersome ;    equilibrium  between  right    675 
and  remedy  disturbed  by  social  growth  ;  influence  of  action  on  the 
case ;  its  growth  hindered  ;  appeals  to  the  king  in  council ;  begin-    676 
ning  of  independent  equitable  jurisdiction ;   Ashby  v.  White  stimu- 
lates action  on  the  case  ;  two  great  factors  in  English  remedial 
law ;  final  abolition  of  forms  of  action ;  royal  commission  of  1850  ;    677 
Judicature  Acts  of  1873  ;  distinction  between  legal  and  equitable 
rights  preserved  ;  substantive  law  unaltered. 

A  legal  right  analyzed  ;  persons  the  subjects  of  rights  and  duties ;    578 
a  normal  person ;    status  in    Roman  law ;   caput ;    upon  what 
capacity  depends ;    an  abnormal  natural  person ;    an  abnormal    579 
artificial  person  ;  Roman  conception  of  a  corporation;  public  and    580 
private  ;  immortality  and  internal  government ;  " pia  causa  "  ;  a    681 
succession  as  a  legal  entity  ;  English  and  American  definitions  of 
corporations. 

Adjective  private  law ;  distinction  between  substantive  and  ad-    682 
jective  law  recent ;    law  not  concerned  more  with  remedies  than 
with  rights ;  how  adjective  law  assists  the  growth  of  substantive ;    683 
self-help  ;  how  restrained  by  political  authority  ;  Teutonic  remedial 
law;  distress  as  a  judicial  remedy ;  relation  of  adjective  private  law    584 
to  public. 

7.  Public  Law  :  Rights  and  duties  of  the  state  in  its  own  courts ;  con-    586 
stitutional,  administrative,  and  criminal  law ;   administrative  law 
defined  ;   primary  function  of  constitutional  law ;    constitutional    686 
limitations ;  division  of  functions ;  Montesquieu ;  Madison's  view ; 
province  of  constitutional  law  ;  flexible  and  rigid  constitutions. 

Administrative   law  ;    Aucoc's   definition ;    Dicey's   statement ;    687 
divergence  of  French  from  English  conceptions ;  when  a  "  conflict "     688 
arises ;   French  administrative  bodies  free  from  judicial  control ; 
accountability  of  officials  under  English  law  ;  no  droit  administratif    689 
in  the  United  States ;  United  States  v.  Lee ;    no  man  above  the 
law  ;  administrative  law  as  understood  in  England  and  America     .     590 

Criminal  law ;  its  early  history  at  Rome  ;  permanent  delegations    691 
and  the  lex  Calpurnia,  B.C.  149;  how  Roman  criminal  law  was 
built  up ;  judicia  extraordinaria ;  Teutonic  conception  of  crime ;    592 
bot  and  wite  in  Old-English  law  ;  constitutio  Criminalis  Carolina; 
penal  codes  of  Germany  and  France  ;  penal  code  for  India ;  Liv-    693 
ingstone's  code  ;   offenses  against  the  state  ;   against  individuals  ;    694 
resemblance  of  criminal  to  civil  procedure  in  England. 


CONTENTS 

CHAPTER  VIII 
LAW  BY  ANALOGY,  OR   INTERNATIONAL  LAW 

PAGES 

1.  Not  enforcible  by  a  Sovereign  Political  Authority :  Claims  of  the    595 

transcendental  school ;  Puffendorf's  statement ;  Vattel's ;  Haute- 
feuille's ;  Bluntschli's ;  why  the  assumptions  of  that  school  have    696 
been  rejected  ;    Austin's  definitions  ;  why  international  law  is  ex- 
cluded from  the  domain  of  positive  law ;  international  law  as  the    597 
"law  of  the  land"  ;  Mansfield  ;  Marshall. 

2.  The  State  and  its  External  Sovereignty  :  Sovereignty  and  jurisdic-    598 

tion ;  alternative  proposition  of  Grotius ;  states  as  moral  beings ; 
international  law  as  defined  by  Bulmerincq,  by  Cairns,  by  Coler-    599 
idge ;  a  normal  international  person ;  its  attributes  and  responsi- 
bilities ;  territory  and  jurisdiction  coextensive ;  several  attributes    600 
of  sovereignty  ;  a  state's  right  to  reputation. 

3.  Why  Types  of  State  Organization  must  be  Examined      .        .        .     601 

4.  Sovereign  States  divided  into  Five  Classes :  A  personal  union ;  a    602 

real  union  ;  a  gesammtstaat,  or  joint  state ;  an  incorporate  union  ;    603 
the  treaty-making  power  in  the  British  Empire  ;  Palmerston  ;  fed- 
eral unions;  &  staatenbund ;  existing  German  Empire;  a  bundes-    604 
staat ;  a  defect  in  the  Constitution  of  the  United  States. 

5.  An  Abnormal  International  Person :   Fart  sovereign  states ;  states    605 

permanently  neutralized ;  when  a  state  ceases  to  be  a  person  in    606 

international  law. 
3.  International  Law,  Normal  and  Abnormal :  Substantive  and  adjec-    607 

tive  ;  law  of  peace  ;  law  of  war ;  law  of  neutrality. 
7.  Holy  Roman  Empire  as  an  International  Power  :  Its  sway  supposed    608 

to  be  universal ;  the  one  bond  of  cohesion  for  centuries ;  the  dream    609 

of  a  substitute  for  the  Grotian  system ;  the  hope  of  transmuting    610 

international  law  into  positive  law. 

CHAPTER  IX 

INTERNATIONAL  RULES  TO  PREVENT  CONFLICT  OF 
LAWS 

1.  Every  State  may  exclude  Foreign  Laws  from  its  Territory:  Foe-    611 

lix's  statement ;    two  of  the  three  maxims  of  Huber  ;  a  strict 
application  of  the  lex  fori  would  prevent  all  conflict  of  laws. 

2.  Comity  a  Body  of  Rules  to  prevent  Inconveniences  and  Injustices  :    612 

Third  axiom  of  Huber ;  aim  of  existing  system ;  influence  of  the    613 
law  of  domicile  ;  exceptions  to  the  rule  of  the  lex  fori. 

3.  Judicial  Evolution  of  the  Rules  in  Question :  Why  no  conflict  be-    614 

tween  jus  gentium  and  Roman  civil  law ;   special  treaties  did  not 
put  foreigners  on  equal  terms  with  Roman  citizens ;   how  status 
and  capacity  of  foreigners  were  determined ;    the  law  of  status    615 
that  followed  a  Roman  wherever  he  went 


CONTENTS  xlv 

FAGX8 

4.  Personal  Stage  in  the  Development  of  Law:  As  illustrated  by  gov-    613 

ernments  established  by  barbarians ;  concession  of  Franks  to  con- 
quered races;  Roman  law  as  the  personal  law  of  the  Romani ;  a 
man  lived  by  the  law  of  his  nation  ;  how  adjustment  was  made  of 
"a  conflict  of  laws"  ;  transition  made  from  personal  to  territorial  617 
organization ;  result  of  conception  of  territorial  sovereignty ; 
comity  the  product  of  judicial  legislation ;  Dicey's  statement  .  618 

5.  Origin  and  Growth  of  the  Literature  of  the  Subject:  Personal,  real,    619 

and  mixed  statutes;  Bartolus  (1314-1357),  Commentarii  in  Codi- 
cem;  Halbritter  (1545),  De  Statutis;  John  Voet  (1698),  Comm. 
ad  Pandectas,  especially  lib.  i.,  tit.  4,  pres.  6,  de  statutis;  J.  Henry  620 
(1823),  Treatise  on  the  Difference  between  Personal  and  Seal 
Statutes;  Chassat  (1845),  Traite  des  Statute,  lots personnelles  et 
reelles,  et  du  droit  international  prive  ;  Rodenburg  (1653),  Tracta- 
tus  de  Jure  quod  Oritur  ex  Statutorum  Conjlictu;  Paul  Voet 
(1661),  De  statutis  eorumque  concursu;  Huber  (1686),  De  con- 
flictu  legum  ;  Hertius  (1688),  De  collisione  legum;  Meiern  (1715),  621 
De  statutorum  conflictu  eorumque  apud  exteros  valore  ',  Alef  (1740), 
De,  diversorum  statutorum  concursu  eorumque  conflictu  dissertatio  ; 
Ham  (1792),  De  statutorum  collisione  et  praeferentia  ;  Livennore 
(1828),  On  the  Contrariety  of  Laws;  Brinkmann  (1831),  Von  dem 
Widerspruche  auslandischer  und  einheimischer  Gesetze ;  Story 
(1834),  Conflict  of  Laws ;  Schaffner  (1841),  Die  Entwicklung  des 
internationalen  Privatrechts ;  Wachter  (1841-1842),  Uber  die  Col- 
lision der  Privatrechtsgesetze  verschiedner  Staaten;  Foelix  (1843), 
Traite  du  droit  international  prive,  ou  du  conflit  des  lois  en  ma- 
tiere  de  droit  prive;  Hosack  (1847),  Conflict  of  Laws ;  Pfeiffer 
(1851),  Das  Princip  des  internationalen  Privatrechts;  Westlake 
(1858),  Private  International  Law,  or  the  Conflict  of  Laws;  Phil- 
limore  (1861),  On  Private  International  Law,  or  Comity  ;  von  Bar 
(1862),  Das  Internationale  Privat- und  Strafrecht ;  Fiore  (1869), 
Diritto  internazionale  privato,  o  principii  per  risolvere  i  conflitti 
tra  legislazioni  diverse  in  materia  di  diritto  civile  e  commerciale; 
Wharton  (1872),  Conflict  of  Laws;  Haus  (1874),  Le  droit  prive 
qui  regit  les  etrangers  en  Selgique;  Lomonaco  (1874),  Trattato  di 
diritto  civile  internazionale;  Brocher  (1876),  Nouveau  traite  du 
droit  Internationale  prive;  Foote  (1878),  Private  International 
Jurisprudence;  Asser  (1878),  Schets  van  het  internationaal  Pri- 
vaatregt;  von  Ptittlingen  (1878),  Handbuch  des  in  Oesterreich- 
Ungarn  geltenden  internationalen  Privatrechts;  Laurent  (1880), 
first  volume  of  the  Droit  civil  international;  Fiore  (1880),  Droit 
penal  international;  Dicey  (1896),  Digest  of  the  Law  of  England 
with  reference  to  the  Conflict  of  Laws;  Minor  (1901),  Conflict  of 
Laws,  or  Private  International  Law. 

6.  Two  Groups  of  Basic  Principles :  Five  instances  in  which  a  foreign    622 

law  cannot  be  enforced  ;  immovable  property ;  transactions  with 

a  foreign  element ;  application  of  law  (Anwendung  der  Gesetze)  ;    623 


xlvi  CONTENTS 

PAGES 

how  the  validity  of  a  transaction  is  to  be  tested  ;  every  element  con-    624 
trolled  by  the  law  of  its  situs ;  active  elements  ;  passive  elements ; 
how  the  situs  of  an  element  is  ascertained ;  possible  fora, ;  ques-    625 
tions  upon  which  courts  must  pass. 

7.  Nomenclature :  Comity  defined ;  states  assent  to  the  rules  in  ques-  626 
tion,  through  the  judicial  power ;  as  international  rules  for  the  627 
prevention  of  conflict  of  laws;  "International  Law"  and  "Con-  628 
flict  of  Laws." 


TITLES  OF  LEADING  AUTHORITIES  CITED 

ABEGG:   De  antiquissimo  Romanorum  jure  criminal!.     Konigsberg, 

1823. 
Act  Books  of  the  Star  Chamber,  printed  by  Master  of  Rolls,  Calendar 

of  State  Papers,  Dom.  Series.     1633-1640. 
AHRENS:   Cours  de  droit  naturel.     1840. 
ALCUBILLA,  MARCELO  M. :    Codigos    Antiguos  de  Espana.     Madrid, 

1885. 
ALEF:   De  diversorum  statutorum  concursu  eorumque  conflictu  dis- 

sertatio.     1740. 
American   Constitutions :    Jose1    I.  Rodriguez,   chief    translator  and 

librarian  of  the  International  Bureau  of  American  Republics. 

1905-1907. 
AMOS,  SHELDON  :  A  Systematic  View  of  the  Science  of  Jurisprudence. 

London,  1872. 
Anglo-Saxon  Chronicle.    Edited,  with  a  translation,  by  B.  Thorpe. 

2  vols.     Published  under  the  direction  of  the  Master  of  Rolls. 

London,  1861. 
ARISTOTLE  :    Ethics ;  Politics ;   Constitutions.    The  fragments  of  the 

latter,  collected  and  annotated  by  Neumann,  are  contained  in 

Bekker's  Oxford  edition  of  Aristotle. 
AROSEMENA:    Estudios  constitutionals  sobre  los  Gobiernos  de  la 

America  Latina.     Paris,  1878. 

ASSER,  T.  M.  C. :  Schets  van  het  international  Privaatregt.     1878. 
ASVERUS  :  Die  legis  actio  sacramenti.    Leipsic,  1837. 
Aucoc :  Droit  Administratif . 
AUSTIN,  JOHN  :  Province  of  Jurisprudence  Determined ;  Lectures  on 

Jurisprudence ;  or,  The  Philosophy  of  Positive  Law.   5th  ed.   1875. 

Campbell. 
AYALA,  BALTHAZAR  :   De  Jure  et  Officiis  Bellicis  et  Disciplina  Libri 

Tres.     Antwerp,  1597. 
AZUNI,  D.  A. :   Systeme  universel  de  principes  du  droit  maritime  de 

1'Europe;  traduit  de  1'Italien,  par  J.  M.  Digeon.     1790. 

BACHOFEN  :  De  Romanorum  judiciis  civilibus.     Gottingen,  1840. 

BACON,  FRANCIS,  Baron  of  Verulam :  Works. 

BAGEHOT:   The  English  Constitution.     1896. 

BAILEY:  Succession  to  the  English  Crown. 

BALUZITJS  :  Capitularia  regum  Francorum.      Curante  Petro  Chiniac. 

2  vols.     Paris,  1780.     Fol. 
BANCROFT,  GEORGE  :  History  of  the  Formation  of  the  Constitution  of 

the  United  States.     1903. 

xlvii 


xlviii       TITLES  OF  LEADING  AUTHORITIES  CITED 

BAR,  L. :  Das  Internationale  Privat-  und  Strafrecht :  Private  Inter- 
national Law.  Gillespie's  trans.  2d  ed.  1892. 

BARNARD:  Lectures  on  American  War.    Oxford,  1861. 

BARTOLUS:  Commentarii  in  Codicem. 

BEDAE  Opera.     In  the  publications  of  the  English  Historical  Society. 

BEKKER:   Die  Aktionen  des  rom  Privatrechts.     Berlin,  1871,  1873. 

BENEDICTDS  in  the  Rolls  Series.     Stubbs,  ed. 

BENTHAM:  Principes  du  Code  Civil,  par  Dumont:  Introduction  to 
Morals  and  Legislation;  Fragment  on  Government.  1776. 

BESTA  :  L'Opera  d'Irnerio.     1896. 

BIENER:  Geschichte  der  Novellen  Justinians.     Berlin,  1824. 

BIGELOW,  M.  M. :  Placita  Anglo-Normannica ;  History  of  Procedure 
in  England  from  the  Norman  Conquest;  Centralization  and  the 
Law.  Boston,  1906. 

BLACKSTONE'S  Commentaries.     Cooley  ed. 

BLOCH:  Origines  du  se*nat  romain. 

BLUNT:  Reformation  of  the  Church  of  England. 

BLUNTSCHLI:  Das  moderne  Volkerrecht;  Die  Lehre  vom  modernen 
Staat. 

BODIN,  JEAN  :  Les  six  livres  de  la  Re"publique.    Paris,  1576. 

BOUTMY,  E. :  Etudes  de  droit  constitutionnel.    Paris,  1885. 

BRACTON  :  De  Legibus  et  Consuetudinibus  Angliae.  Twiss.  ed.  Lon- 
don, 1878-1883.  As  to  his  relation  to  Roman  law,  see  Carl 
Giitenbock,  1862,  translated  by  Coxe,  Philadelphia,  1866. 

BRACTON  &  Azo  (Selden  Soc.). 

BREMER  :  Rechtslehrer  u.  Rechtsschulen  im  rom.  Kaiserreich  (Berlin, 
1868),  in  the  Gottinger  Gelehrte  Anziegen,  1889. 

BRINKMANN,  R. :  Von  dem  Widerspruche  austandischer  und  ein- 
heimischer  Gesetze.  1831. 

BROCHER,  C. :  Nouveau  traite  du  droit  international  prive".     1876. 

BROOM  :  Constitutional  Law.     Denman's  ed. 

BRUNNER  :  Die  Entstehung  de  Schwurgerichte,  1872 ;  Deutsche  Rechts- 
geschichte,  1887. 

BRUNS  :  Fontes  Juris  Romani  antiqui,  ed.  Car.  Geo.  Bruns.  4th  ed. 
Tubingen,  1879;  6th  ed.  by  Mommsen  and  Gradenwitz,  1893. 

BRYCE,  JAMES:  Holy  Roman  Empire;  American  Commonwealth; 
Studies  in  History  and  Jurisprudence. 

BUHL,  H. :   Salvius  Julianus.     Heidelberg,  1886. 

BURNET:  History  of  the  Reformation;  History  of  his  Own  Times. 
Oxford,  1823. 

CAESAR  :  De  Bello  Gallico. 

CALVO,  CARLOS  :  Le  Droit  International  the"orique  et  pratique.     Pub- 
lished originally  in  Spanish.     Paris,  1868. 
CALVO,  JOAQUIN  B. :  Republica  de  Costa  Rica.    San  Jose",  1886. 
CAMPBELL  :  Lives  of  the  Chancellors ;  Lives  of  the  Chief  Justices. 
CARLE,  GIUSEPPE:   Le  Origini  del  diritto  romano.     Torino,  1888. 


TITLES   OF  LEADING  AUTHORITIES  CITED         xlix 

CARRANZA:   Digesto  constitutional  americano.    Buenos  Aires,  1900. 

Republica  Argentina,  constituci6n.   1898. 
CASTILLO  DE  VELAZO:   Derecho  constitucional.    Mexico,  1870. 
Charters  and  Constitutions.     B.  P.  Poore,  1878. 
CHASSAT  :   Trait6  des  statuts,  lois  personnelles  et  replies,  et  du  droit 

international  prive1.     1845. 
CHRYSIPPUS:    apud    Plutarch,    De    Stoicorum    Repugnantiis ;   apud 

Diogenes  Laertius. 
CICERO  :  De  Officiis ;  Orat.  Partit. ;  de  Repub. ;  de  Oratore ;  de  Lege 

Agraria ;  pro  Domo ;  pro  Mur. ;  in  Cornel. ;  in  Verrem ;  de  Invent. 
CLARK,  E.  C. :  Early  Roman  Law :  the  Regal  Period.    London,  1872. 
CLEIRAC  :  Les  Us  et  Costumes  de  la  Mer.    Bordeaux,  1647. 
CLIFFORD  :  History  of  Private  Bill  Legislation. 
COKE  :  Institutes  of  the  Laws  of  England,  by  Chas.  Butler.    1st  Amer. 

from    19th  London  ed.  1853;    Reports,  Dublin,  1793,  13  parts 

in  7  vols. 
CONRAT:   Geschichte  der  Quellen  des  romischen  Rechts  im  friiheren 

Mittelalter.    1889. 
Consolato  del  Mare :  published  in  the  Catalonian  dialect  at  Barcelona 

in  1494.     The  best  edition  is  that  of  Pardessus  contained  in  his 

Collection  des  Lois  Maritimes  ante'rieurs  au  xviii"  Siecle  (Paris, 

1828-1845,  6  vols.),  II.  C.  XII. 
Constituisao  da  Republica  dos  Estados  Unidos  do  Brazil,  acompan- 

hada  das  leis  organicas  publicadas  desde  15  de  Novembro  de 

1889.     Imprensa  nacional,  1891. 
COULANGES,  FUSTEL  DE  :    La  Cite"  Antique,  e"tude  sur   le  culte,  le 

droit,  les  institutiones  de  la  Grece  et  de  Rome.     14th  ed.    1895. 

Le  be'ne'fice  et  le  patronat. 
COOLEY  :  Constitutional  Limitations  which  rest  upon  the  Legislative 

Power  of  the  States  of  the  American  Union.     7th  ed.     1893. 
CORONADO:  Derecho  coastitucional.    Guadalaxara,  1899. 
COSTERO,  F. :   II  Principe.     Milan,  1875. 
CUNNINGHAM,  W. :  The  Growth  of  English  Industry  and  Commerce. 

2  vols.     Cambridge,  1890. 
CUQ,  EDOUARD:    Les  institutions  juridiques  des  Romains  (L'ancien 

droit).     Paris,  1891. 
CZYHLARZ  :  Das  romische  Dotalrecht.     1870. 

DAHN:   Die  Konige  der  Germanen. 

DANTE  :  De  Monarchia.    Carl  Witte.     1863,  1867. 

DANZ  :    Lehrbuch  der  Geschichte   des  romischen   Rechts.     2d  ed. 

Leipsic,  1871,  1873. 
DARESTE,  RODOLPHE  :  Etudes  d'Histoire  du  Droit,  1889 ;   La  Science 

du  Droit  en  Grece,  1893 ;  Nouvelles  Etudes  d'Histoire  du  Droit, 

1902. 
DELISLE:    Recueil  de  jugements  de    l'4chiquier  de  Normandie  au 

xiii™  siecle.     Paris,  1864. 


1  TITLES  OF  LEADING  AUTHORITIES  CITED 

DBRNBURG  :   Die  Institutionen  des  Gaius. 

Dialogus  de  Scaccario,  first  printed  in  Madox's  History  of  the  Ex- 
chequer, and  in  Stubbs's  Select  Charters. 

DICETO,  RALPH  of :  Abbreviations  Chronicorum  and  Imagines  His- 
toriarum,  edited  by  Stubbs  in  the  Rolls  Series. 

DICEY:  The  Privy  Council;  Introduction  to  the  Study  of  the  Law 
of  the  Constitution;  A  Digest  with  Reference  to  the  Conflict 
of  Laws  (Moore  ed.) ;  Law  and  Public  Opinion  in  England ;  Par- 
ties to  an  Action. 

DIGBY,  KENELM  E. :  An  Introduction  to  the  History  of  the  Law  of 
Real  Property  with  Original  Authorities.  Oxford,  1875. 

DILLON,  J.  F. :  The  Laws  and  Jurisprudence  of  England  and  America, 
Boston,  1895;  Municipal  Corporations. 

DION  CASSIUS  :  Sturz  ed.    Leipsic,  1824-1843. 

DIBKSEN:  Uebersicht  der  bisherigen  Versuche  zur  Kritik  u.  Her- 
stellung  d.  Zwolf-Tafel-Fragmente.  Leipsic,  1824. 

DOWELL,  S :  History  of  Taxation  and  Taxes  in  England.     1884. 

EADMER:   Historia  Novorum.    Printed  in  Migne,  P.  L.  clix. 
EISELE  :  Zur  Diagnostik  der  Interpolationen  (ZS.  d.  Sav.  St.,  vol.  vii.). 
ELLIS,  SIR  HENRY:    A  General  Introduction  to  Domesday  Book. 

2  vols.     1833. 

ERSKINE:   Principles  of  the  Law  of  Scotland.    19th  ed.  (Rankine). 
ESMARCH  :  Romische  Rechtsgeschichte.    3d  ed.     1888. 
ESMEIN,  A. :  Melanges  d'histoire  du  droit  et  de  critique-droit  romain, 

Paris,  1886;   Cours  d'histoire  du  droit  franc.ais,  2d  ed.,  1895. 
Essays  in  Anglo-Saxon  Law.    Boston,  1876. 
EYSSENHARDT  :  Justinians  Digesten  nach  Drittheilen,  Partes,  Biichern, 

Titeln,  u.  Fragmenten.    Leipsic,  1845. 

FERRINI,  CONTARDO:  Storia  delle  fonti  del  diritto  romano  e  della 
giurisprudenza  romana.  Milan,  1885. 

FESTUS  :  ed.  Miiller.    Leipsic,  1839. 

FICKER  :  Untersuchungen  zur  Erbenfolge,  1891-1895 ;  Ueber  nahere 
Verwandtschaft  zwischen  gothisch-spanischem  und  norwegisch- 
islandischem  Recht  (Mittheilungen  des  Instituts  fur  osterreichische 
Geschichtsforschung,  1888;  Forschungen  zur  Reichs-u.  Rechts- 
geschichte Italiens,  1870. 

FIORE,  P. :  Diritto  internazionale  private,  o  principii  per  risolvere  i 
conflitti  tra  legislazioni  diverse  in  materia  di  diritto  civile  e  com- 
merciale,  1869;  Droit  pe"nal  international  et  de  1 'extradition 
(traduit  par  C.  Antoine),  1880. 

FIORETTI  :  Legis  actio  sacramento.    Naples,  1883. 

FITTING:  Die  Anfange  der  Rechtschule  zu  Bologna,  1888;  Summa 
Codicis,  and  Questiones,  des  Irnerius,  2  (separate)  vols.,  1894. 

FLACH:  Les  origines  de  1'ancienne  France;  Etudes  critiques  sur 
1'histoire  du  droit  romain.  1890. 


TITLES  OF  LEADING  AUTHORITIES  CITED  li 

FLETA  :  Seu  Commentarius  Juris  Anglicani.    Londini,  1685. 

FOELIX,  J.  J.  G. :  Trait6  du  Droit  International  Prive",  4th  ed.,  revue 
et  augment^e  par  C.  Demangeat.  Paris,  1866. 

FORSYTH  :  Trial  by  Jury. 

FORTESCUE,  SIR  JOHN  :  De  Laudibus  Legum  Angliae ;  De  Dominio 
Regali  et  Politico ;  De  Natura  Legis  Naturae,  contained  in  the  first 
volume  of  the  sumptuous  edition  printed  for  private  distribution 
by  Lord  Clermont,  in  1869,  in  two  volumes  quarto. 

FOSTER,  SIR  M. :  Crown  Law.    Oxford,  1762. 

FOURNIER  :  Les  officialite's  au  moyen  age. 

FREEMAN,  EDWARD  A. :  History  of  the  Norman  Conquest;  Compara- 
tive Politics ;  History  of  Federal  Government. 

FREIRE  :  Historia  Constitucional  da  Republica  dos  Estados  Unidos  do 
Brazil.  Rio  de  Janeiro,  1894. 

GAIUS  :  Institutionum  commentarii  quattuor.  The  first  edition  was  that 

of  Goschen,  published  in  1820.     During  the  next  fifty  years  more 

than  twenty  new  editions  appeared.    The  Gothic  epitome  of  Gaius 

is  contained  in  the  Lex  Romana  Visigothorum,  and  was  first  edited 

apart  from  it  in  1825.     The  last  edition  is  that  of  Booking  (Bonn, 

1831),  in  the  Corp.  Jur.  Rom.  Antejustiniani. 
GELLIUS,  AULUS  :    Noctes  Atticae.    The  editio  princeps  appeared  at 

Rome  in  1469. 
GENTILI,  ALBERICO  :  De  Jure  Belli  Libri  Tres.    Edidit  T.  E.  Holland. 

4to.    Oxonii,  1877. 

GENZ,  HERMANN  :  Das  patricische  Rom.    Berlin,  1878. 
German  Civil  Code  of  1900,  now  being  translated  into  English  by  the 

Pennsylvania  Bar  Association. 
GERVASE:   The  Chronicle  of  the  Reigns  of  Stephen,  Henry  II.,  and 

Richard  I.    Stubbs,  ed.    Rolls  Series. 
Gesta  Stephani,  edited  for  English  Historical  Society  by  Dr.  R.  C. 

Sewell.     1845. 

GIBBON  :  Decline  and  Fall  of  the  Roman  Empire. 
GIBSON,  REV.  H.  W. :  The  Influence  of  Christianity  upon  the  Law  of 

Rome.    Law  Magazine  and  Review,  August,  1906. 
GILBERT  :  History  of  the  Exchequer. 
GIRARD,  P.  F. :  Manuel  e'le'mentaire  de  droit  romain.     2d  ed.    Paris, 

1898. 
GLANVILL,  RANULF  :    De  Legibus  et  Consuetudinibus  regni  Angliae. 

London,  1604. 

GLASSON  :  Etude  sur  Gaius,  etc.    2d  ed.    Paris,  1885. 
GNEIST,  DR.  RUDOLPH:     Self-government ;    History  of  the  English 

Constitution. 
GRADENWITZ  :   Interpolationen   in   den  Pandekten  (ZS.  d.  Sav.  St., 

vol.  vii.,  pp.  45  ff.). 

GREEN,  J.  R. :  The  Making  of  England.    New  York,  1882. 
GREENIDGE,  A.  H.  J. :  Roman  Public  Life.    London,  1901. 


Hi  TITLES  OF  LEADING  AUTHORITIES  CITED 

GROTIUS  (HuiG  VAN  GROOT),  HUGO,  1583-1645 :  De  jure  praedae  com- 
mentarius,  written  in  1604,  brought  to  light  and  printed  at  The 
Hague,  under  the  auspices  of  Prof.  Fruin,  in  1868;  Mare  Libe- 
rum,  nothing  more  than  a  chapter  (the  12th)  of  the  De  jure 
praeda,  1609;  De  Jure  Belli  ac  Pacis,  Libri  Tres.  Paris,  1625. 

GRUPE,  ED.  :  De  Justiniani  Institutionum  compositione  (Argentorati, 
1884). 

GUBBINS,  J.  H. :  Translation  of  the  Civil  Code  of  Japan.    Tokio,  1897. 

GUEST,  DR.  E. :  "Early  English  Settlements,"  in  Salisbury  volume  of 
the  Transactions  of  the  Archaeological  Institute. 

GUIZOT:  History  of  Civilization;  History  of  Representative  Govern- 
ment. 

GUTERBOCK,  CARL:  Henricus  de  Bracton.  Trans,  by  Coxe.  Phila- 
delphia 1866. 

HAENEL  :  Lex  Rom.  Wisigothorum  ad  LXXVI.  libror.  manuscriptor. 

fidem  recognovit  .  .  .  Gust.  Haenel.     Berlin,  1849. 
HALE,  SIR  M. :  History  of  the  Common  Law.     London,  1820. 
HALL,  W.  E. :  A  Treatise  on  International  Law.    4th  ed.    Oxford,  1895. 
HALLECK,  H.  W. :  International  Law,  or  Rules  Regulating  the  Inter- 
course of  States  in  Peace  and  War.    3d  ed.,  by  Baker.    London, 

1893. 

HAM  :  De  statutorum  collisione  et  praeferentia.     1792. 
HARDY,  SIR  T.  D. :  Preface  to  the  Close  Rolls. 
HARPER,  R.  F. :  The  Code  of  Hammurabi,  King  of  Babylon,  about 

2250  B.C.     Chicago,  1904. 
HAUS,  J.  J. :  Le  droit  prive"  qui  re"git  les  Strangers  in  Belgique,  ou  du 

droit  des  gens  prive",  etc.    1874. 
HAUTEFEUILLE  :  Des  Devoirs  des  Nations  Neutres  en  temps  de  Guerre 

Maritime.    3  vols. 
HEFFTER,  A.  W. :  Droit  International  Public  de  1'Europe.     Bergson's 

ed.,  by  Geffcken.     1883. 

HEIMBACH  :  Prolegomena  Basilicorum.     Leipsic,  1870. 
HEINECCIUS,  Jo.  GOTTLIEB  :    Recitationes  in  Elementa  Juris  Civilis. 

Madrid,  1836. 
HENRICI  Archidiaconi  Huntindunensis  Historia  Anglorum.    Thomas 

Arnold,  ed.     Rolls  Series.     1879. 
HENRY,  J. :   Treatise  on  the  Difference  between  Personal  and  Real 

Statutes.     1823. 
HERON,  D.  C. :  Introduction  to  the  History  of  Jurisprudence.     London, 

1880. 
HERTIUS,  J.  N. :  De  collisione  legum  (1688,  in  the  Opuscula,  I.,  pp.  118- 

154). 

HESSELS  and  KERN  :  Lex  Salica,  The  ten  texts.     1880. 
HINSCHIUS  :  System  des  katholischen  Kirchenrechts.     1869. 
HIRSCHFELD,  O. :   Zur  Geschichte  des  latinischen  Rechts  (Festschrift 

fur  d.  archaolog.  Institut  in  Rom.     Vienna,  1879). 


TITLES  OF  LEADING  AUTHORITIES  CITED          liii 

HOBBS,  THOMAS  :  Leviathan,  or  the  Matter,  Form,  and  Power  of  a 

Commonwealth,  Ecclesiastical  and  Civil.     1651. 
HODGKIN  :  Italy  and  her  Invaders. 
HOFMAN  :   Periculum  beim  Kaufe ;   Beitrage  zur  Gesch.  d.  griech.  u. 

rom  Rechts.     Vienna,  1870. 

HOHLBAUM,  C. :  Hansisches  Urkundenbuch.    Halle,  1876. 
HOLLAND,  T.  E. :  The  Elements  of  Jurisprudence.     10th  ed.   Oxford, 

1906. 

HOLMES,  MR.  JUSTICE  :  The  Common  Law.     Boston,  1881. 
HOMMEL  :  Palingenesia  libror.  juris  veterum.    3  vols.    Leipsic,  1767. 
HOSACK,  J. :  Conflict  of  Laws.     1847. 

HOVEDEN,  ROGER  :  Chronica.     Stubbs,  ed.     Rolls  Series.     1868-71. 
HOWE,  W.  W. :  Studies  in  the  Civil  Law.    2d  ed.    Boston,  1905. 
HUBER,  ULRIC  :  De  Conflictu  Legum,  in  his  Praelectiones  juris  Romani. 

1686. 

HUDSON  :  "Treatise  on  the  Star  Chamber,"  in  Collectanea  Juridica. 
HUGO,  G. :  Lehrbuch  eines  civilistischen  Cursus. 
HULLMAN  :  Stadtewesen  des  Mittelalters. 
HUSCHKE,  PH.  ED.  :   Jurisprudentiae  Antejustinianae  quae  supereunt. 

Leipsic,  1879,  5th  ed.,  1886;   Die  Multa  u.  da  Sacramentum  in 

ihren  verschiednen  Anwendungen,  1874. 

IHERING,  RUDOLPH  VON  :  Geist  des  romischen  Rechts  auf  den  ver- 
schiedenen  Stufen  seiner  Entwicklung.  Leipsic,  1873-74.  (French 
translation  by  Meulenaere,  revised  by  the  author.  Paris,  1877-78.) 
Der  Zweck  im  Recht,  Leipsic,  1877-83;  Scherz  und  Ernst  in 
der  Jurispruderiz,  Leipsic,  1885;  Vorgeschichte  der  Indoeuro- 
paer ;  Ueber  den  Besitzwillen,  Jena,  1889. 

ILBERT,  C.  P. :  Legislative  Methods  and  Forms. 

Institutionum  Graeca  paraphrasis  Theophilo  antecessori  vulgo  tributa. 
Ad  fid.  libror.  manuscriptor.  recensuit  E.  C.  Ferrini.  Berlin, 
1884,  1897. 

JANET,  PAUL  :  Histoire  de  la  Science  Politique. 

JOHNS,  C.  H.  W. :  The  Oldest  Code  of  Laws  in  the  World,  trans,  by 

C.  H.  W.  Johns.     Edinburgh,  1903. 
Johns  Hopkins  Studies. 

JORS,  P. :  Rdmische  Rechtswissenschaft  zur  Zeit  der  Republik.    1888. 
JUSTINIAN  :  Institutes ;  Code,  Digest ;  Novels. 

KANT,  IMMANUEL  :  Works. 

KARLOWA,  DR.   0. :    Der  romische    Civilprozess  sur   Zeit  d.  Legis- 

actionen,     Berlin,    1872;     Romische    Rechtsgeschichte,    Erster 

Band :  Staatsrecht  u.  Rechtsquellen,  Leipsic,  1885 ;  Die  Fornaen 

d.  Rom.  Ehe  u.  Manus.    Bonn,  1868. 
KELLER,  DR.  F.  L.  VON  :  Der  rom.  Civilprozess  u.  die  Actionen.     6th 

ed.  by  Wach.    Berlin,  1883. 


liv          TITLES  OF  LEADING  AUTHORITIES  CITED 

KEMBLE,  JOHN  M. :  Codex  Diplomatics  Aevi  Saxonici ;  The  Saxons  in 
England.  London,  1849. 

KENT  :  Commentaries.     12th  ed.,  Holmes. 

KUNTZE,  DR.  J.  E. :  Excurse  iiber  rom  Recht.  2d  ed.,  Leipsic,  1880 ; 
Der  Provincialjurist  Gains  wissenschaftlich  obgeschatzt,  Leip- 
sic, 1883. 

KLUBER,  J.  L. :  Droit  des  Gens  Moderne  de  1'Europe.  2*  e"d.  par  A.  Olt. 
Paris.  1874. 

KRAUSE  :  Abriss  des  Systemes  der  Philosophic  des  Rechtes.     1828. 

KRUGER,  VON  P. :  Geschichte  der  Quellen  und  Litteratur  des  ro- 
mischen  Rechts.  Berlin,  1888. 

LAB  AND:    Das   Staatsrecht    des    deutschen  Reiches  (Marquardsen's 

Handbuch). 

LABBE  :  Antiquae  Collectiones  Decretalum.     Paris,  1609. 
LAURENT,  F. :   Droit  civil  international.     1880. 
LAVELEYE,  E.  DE:   Primitive  Property.     1878. 
LEECH,  PROF.  H.  BROUGHAM:  Essay  on  Ancient  International  Law. 
LEIST,  B.  W. :  Graeco-italische  Rechtsgeschichte.    Jena,  1884. 
LENEL,  O. :  Palingenesia  juris  civilis.     Leipsic,  1888-89. 
LENEL,  O. :  Beitrage  zur  Kunde  des  praetorischen  Edicts.     Stuttgart, 

1878. 
Lex  Romana  Visigothorum  or  Brevarium  Alaricianum,  first  published 

in  extenso  by  Sichard  (Basle,  1528).     The  authoritative  edition 

is  that  of  Haenel.     Berlin,  1849.     The  writers  of  the  sixteenth 

century  were  the  first  to  call  it  Breviarium. 
Liber  Memorandorum  to  be  found  in  the  archives  of  the  Guildhall 

of  the  corporation  of  London. 

LIEBERMANN  :  Einleitung  in  den  Dialogus  de  Scaccario. 
LIVERMORE,  S. :   On  the  Contrariety  of  Laws.     1828. 
LOCKE  :  Essay  on  Civil  Government. 

LOMONACO  :  Trattato  di  diritto  civile  internazionale.     1874. 
LONING  :  Geschichte  des  deutschen  Kirchenrechts.     1878. 
LUCHAIRE  :  Manuel  des  institutions  franQaises.     1892. 

MAASSEN  :  Geschichte  der  Quellen  des  canonischen  Rechts.     1870. 
MACHELARD:  Observations  sur  les  responsaprudentium.     Paris,  1871. 
MACHIAVELLI,    NICCOLO  :    Principe ;    Discorsi.     Works,    Usigli    ed. 

Florence,  1853. 

MACKELDEY,  F. :  Modern  Civil  Law.    Kaufman  ed.     1845. 
MADOX,  THOMAS:    The  History  and  Antiquities  of  the  Exchequer 

of  the  Kings  of  England,  from  the  Norman  Conquest  to  the  end 

of  the  Reign  of  Edward  II.     2  vols.     1769. 
Magni  Rotuli  Scaccarii  Normanniae  sub  Regibus  Angliae.     Published 

by  Stapleton,  and  reprinted  in  Me'moires  de  la  Socie'te'  des  anti- 

quaires  de  Normandie,  vol.  xv.     Delisle  published  a  fragment  of 

the  roll  of  1184.     Caen,  1851. 


TITLES  OF  LEADING  AUTHORITIES  CITED  lv 

MAGOON,  C.  E. :  The  Law  of  Civil  Government  under  Military  Occupa- 
tion. Washington,  1902. 

MAINE,  SIR  HENRY  :  Ancient  Law.  Introduction  and  notes  by  Pollock. 
London,  1906;  Village  Communities  in  the  East  and  West; 
Early  History  of  Institutions;  Popular  Government;  Interna- 
tional Law. 

MAITLAND,  F. :  Domesday  Book;  Register  of  Original  Writs  in  3 
Harvard  Law  Review. 

MALMESBURY,  WILLIAM  OF:  Gesta  Regum  Anglorum,  edited  by  Sir 
T.  D.  Hardy  for  E.  H.  S.,  1840,  along  with  another  work  by  Wil- 
liam, known  as  Historia  Novella. 

MANNING,  CARDINAL  :  The  Pope  and  Magna  Carta.    Baltimore,  1885. 

MARIANA:  Esayo  historico-critico  sobre  la  antiqua  Legislacion  y 
principales  Cuerpos  Legales  de  los  Reynos  de  Leon  y  Castilla. 

MARQUARDT,  VON  J. :  Romische  Staatsverwaltung.  Leipsic,  1873-83. 
There  is  a  French  translation  by  Girard,  Weiss,  etc.  1889-1895. 

MARTENS,  G.  F.  DE  :  Precis  du  Droit  des  Gens  Moderne  de  1'Europe ; 
avec  des  notes  de  M.  S.  Pinheiro-Fereira.  Paris,  1831. 

MASAO,  TOKICHI:  "The  Sources  of  Ancient  Siamese  Law"  in  Yale 
Law  Journal.  Nov.,  1905. 

MASCOVIUS  :   De  sectis  Sabinianor.  et  Proculianor.    Leipsic,  1728. 

MASSE,  G. :  Le  droit  commercial  dans  ses  rapports  avec  le  droit  des 
gens  et  le  droit  civil.  3e  eel.  Paris,  1874. 

MAURER,  VON  G.  L. :  Einleitung  zur  Geschichte  der  Mark-,  Hof-,  Dorf- 
und  Stadtverfassung  und  der  offentlichen  Gerwalt.  Miinchen, 
1854;  Geschichte  der  Fronhofe,  der  Bauernhofe  und  der  Hofver- 
fassung  in  Deutschland.  4  Bande.  Erlangen,  1862. 

MAURER,  KONRAD  :  Ueber  angelsachsische  Rechtsverhaltnisse.  In  the 
Kritische  Ueberschau  der  deutschen  Gesetzgebung,  I.,  II.,  III., 
Miinchen ;  Das  Beweisverfahren  nach  deutschen  Rechten.  Kritiche 
Ueberschau,  V. 

MAY,  SIR  T.  E. :  Constitutional  History  of  England;  Parliamentary 
Practice. 

McGEHEE,  L.  P. :  Due  Process  of  Law.     1906. 

McKECHNiE,  W.  S. :  Magna  Carta.     Glasgow,  1905. 

MEIERN,  J.  G.  DE  :  De  statutorum  conflectu  eorumque  apud  exteros 
valore.  1715. 

MEIGS,  W.  M. :  The  Growth  of  the  Constitution  in  .the  Federal  Con- 
vention of  1787. 

MICHELET,  J. :  Origines  du  Droit  fran^ais.     Paris,  1837. 

MIGNE,  THE  ABBE  :   Patrologia  Latina. 

MILL,  J.  S. :  Representative  Government. 

MINOR,  R.  C. :  Conflict  of  Laws;  or  Private  International  Law.    1901. 

MITTEIS,  VON  L. :  Reichsrecht  und  Volksrecht  in  den  ostlichen  Pro- 
vinzen  des  Romischen  Kaiserreichs.  Leipsic,  1891. 

MOMMSEN,  VON  TH.  :  Romische  Geschichte ;  Romische  Forschungen, 
Berlin,  1864,  1879;  Romisches  Staatsrecht.  Leipsic,  1871-1875; 


Ivi  TITLES  OF  LEADING  AUTHORITIES  CITED 

"Gaius  ein  provincial  jurist,"  in   Bekker  und  Muther's  Jahrb., 

vol.  iii.  (1859),  pp.  1  sq. 

MONTESQUIEU  :  Esprit  des  lois.     Laboulaye  ed.     Paris,  1875-79. 
MONTIEL  Y  DUARTE:   Derecho  piiblica  mexicana.    Mexico,  1871. 
MORENO  CORA  :  El  juicio  de  amparo. 

MORICE,  G.  T. :  English  and  Roman-Dutch  Law.      Oxford,  1903. 
MORIER  :  Essay  on  Land  Tenure.     Macmillan,  1870. 
MORRISON'S  Dictionary  of  Decisions  in  the  Court  of  Session.    27  vols. 

(1532-1816.) 

MOSER,  J.  J. :  Beitrage  zum  Volkerrect  in  Friedenzeiten  I. 
MUIRHEAD,  JAMES  :   Historical  Introd.  to  the  Private  Law  of  Rome. 

Goudy  ed.     London,  1899. 

NASSE,  E. :  On  the  Agricultural  Community  of  the  Middle  Ages  and 
Enclosures  of  the  Sixteenth  Century  in  England.  Translated 
from  the  German  by  Col.  H.  A.  Ouvry.  (Cobden  Club  Publica- 
tion.) London,  1871. 

NATHAN  :  Common  Law  of  South  of  Africa.  Grahamston  and  Lon- 
don, 1904. 

NEAL,  D. :   History  of  the  Puritans. 

NETTLESHIP,  PROF.  :  Article  on  Jus  Gentium  in  the  Journal  of  Phi- 
lology, vol.  xiii.,  no.  26. 

NIEBUHR,  B.  G. :  Romische  Geschichte. 

NISSEN,  A. :  Beitrage  zum  rom.  Staatsrecht.     1885. 

Nueva  Recopilacion,  1567;  Novfsima  Recopilaci6n,  1805;  Spanish 
Codes  of  1870,  1881,  1882,  1885,  1889,  1893. 

ODGERS  :  Libel  and  Slander. 

OLDENDORP  :     Isagoge,  seu  Elementaria  Introductio  Juris    Naturae, 

Gentium  et  Civilis.     1539. 
ORTOLAN  :  Histoire  de  la  Legislation  Romaine. 
OSANN:   Pomponius  de  origine  juris  frag.     Giessen,  1848. 
OSENBRUGGEN  :    Das  altromische  Paricidium,  Kiel,  1841 ;  and  review 

by  Dollmann  in  Richter's  Krit.  Jahrb.,  vol.  xi.,  1842. 

PADELLETTI,  G. :  Storia  del  diritto  romano,  di  G.  Padelletti  con  note 
di  Pietro  Cogliolo.  Firenze,  1886. 

PALGRAVE,  SIR  FRANCIS  :  The  Rise  and  Progress  of  the  English  Com- 
monwealth, 1832;  History  of  Normandy  and  England,  1851- 
1864;  Essay  on  the  Original  Authority  of  the  King's  Council. 

PAPIRIUS  JUSTUS:  Libri  XX.  constitutionum,  a  private  collection 
of  rescripts  compiled  in  second  half  of  the  second  century. 

Parliamentary  or  Constitutional  History,  originally  published  in  1752, 
in  8  vols.,  and  expanded  to  24. 

PAUL:  "The  Sententiae,"  preserved  to  a  considerable  extent,  and 
together  with  the  Fragments  of  Ulpian  may  be  found  in  Tissot's 
Tre"sor.  Metz,  1811. 


TITLES  OF  LEADING  AUTHORITIES  CITED         Ivii 

PERNICE,  A. :  Marcus  Antistius  Labeo :  das  rom.  Privatrecht  im  ersten 
Jahrhunderte  d.  Kaiserzeit,  vol  i.,  1873;  vol.  ii.,  1878;  2d  ed. 
(AbteU.  1),  1895;  vol.  iii.  (Abteil.  1).  1892. 

PERTZ,  G.  H.  :  Monumenta  GermaniaD  Historica. 

PESCATORE:  Die  Glossen  des  Irnerius.     1888. 

PESCHEL:   The  Races  of  Man  and  their  Geographical  Distribution. 

PFEIFFER,  L. :    Das  Princep  des  internationalen  Privatrechts.     1851. 

PHILLIMORE,  SIR  R. :  On  Private  International  Law,  or  Comity. 
1861 

Pipe  Roll  of  31  Henry  I.,  edited  by  Hunter  for  the  Record  Commis- 
sioners. 

POLLOCK  and  MAITLAND:  The  History  of  English  Law  before  the 
Time  of  Edward  I.  2d  ed.  Cambridge  and  Boston,  1899. 

POLLOCK,  SIR  FREDERICK:  An  Introduction  to  the  History  of  the 
Science  of  Politics,  London,  1895;  Introduction  and  Notes  to 
Sir  H.  Maine's  "Ancient  Law,"  London,  1906;  Oxford  lecture 
in  1903  entitled  "The  History  of  Comparative  Jurisprudence," 
Journal  of  the  Society  of  Comparative  Legislation,  pp.  83-84. 

PUCHTA,  G.  F. :  Cursus  der  Institutionen  d.  rom.  Rechts,  8  Aufl., 
besorgt  von  Dr.  Paul  Kruger.  2  vols.  Leipsic,  1875.  10th  ed. 
1893. 

PUFFENDORF  :  De  Jure  Naturae  et  Gentium.  Eng.  trans,  by  Kennett 
and  others.  Oxford,  1703. 

PUTTLINGEN,  V.  VON  :  Handbuch  des  in  Oesterreich-Ungarn  geltenden 
internationalen  Privatrechts.  1878. 

REEVES,  JOHN  :  History  of  the  English  Law  from  the  Time  of  the 
Romans  to  the  End  of  the  Reign  of  Elizabeth.  Finlayson  ed. 
London,  1869. 

Re'formateurs  et  Publicistes  de  1'Europe.     Paris,  1864. 

REIN  :   Das  Criminalrecht  der  Romer.     Leipsic,  1844. 

Report  on  the  Dignity  of  a  Peer. 

RHON:   Comment,  ad  Edict.  Theodorici.     Halle,  1816. 

RITCHIE,  PROF.  D.  G. :  Natural  Rights.     1895. 

RIVES,  W.  C.  :   Life  and  Times  of  Madison.     1841. 

RIVIER,  A. :  Droit  de  Famille  Remain. 

RIVOLTA,  V. :  La  Scuola  delle  leggi  romane  in  Ravenna.  Bologna, 
1888. 

ROBERTSON:   Charles  V.;   Scotland  under  the  Early  Kings. 

ROBY,  H.  J. :  An  Introduction  to  the  Study  of  Justinian's  Digest,  etc. 
Cambridge,  1884. 

Roccus :  a  Neapolitan  lawyer,  who  published  a  large  work  on  mari- 
time law  in  1655,  from  which  was  compiled  a  smaller  work  pub- 
lished in  Amsterdam  in  1708,  entitled  De  Navibus  et  Naulo. 

RODENBURG,  C.  :  De  jure  quod  oritur  ex  statutorum  vel  consuetudi- 
num  discrepantium  confactu,  prefixed  to  his  Tractus  de  jure 
conjugam.  1653. 

2 1 


Iviii        TITLES  OF  LEADING  AUTHORITIES  CITED 

RODRIGUES,  J.  C. :  Constitui§ao  politics  do  Imperio  do  Brasil.  Rio 
de  Janeiro,  1863. 

ROMERO,  M.  :  Mexico  and  the  United  States.     1898. 

ROSSBACH,  A.  :  Die  Romische  Ehe.    Stuttgart,  1853. 

ROTH,  P. :  Geschichte  des  Beneficialwesens.  Erlangen,  1850.  Feuda- 
litat  und  Unterthanverband.  Weimar,  1863. 

RUSSELL,  LORD  JOHN  :  History  of  the  Eng.  Govt.  and  Constitution. 

RYMER,  THOMAS  :  Foedera,  commencing  with  the  reign  of  Henry  I. 
(arm.  1134  and  extending  to  1654).  Hardy's  Syllabus  gives  the 
references  to  the  three  editions,  —  the  original  edition,  the  so- 
called  Dutch  edition  published  at  The  Hague,  and  the  Record 
edition. 

SAINT  THOMAS  OF  AQUINAS  :  De  Regimine  Principum. 

SANIO  :  Zur  Geschichte  d.  rom.  Rechtswissenschaft,  Kb'nigsberg,  1858; 
Varroniana  in  d.  Schriften  d.  rom.  Juristen,  Leipsic,  1867. 

SANJINES:  Las  Constituciones  politicas  de  Bolivia;  Estudio  his- 
t6rico  y  comparative.  La  Paz,  1906. 

SARMIENTO  :  Commentaries  de  la  Constitution  de  la  Confederation 
Argentina.  1853. 

SAVIGNY,  F.  C.  VON  :  Das  Recht  des  Besitzes,  1803 ;  Vom  Beruf  unserer 
Zeit  fur  Gezetzgebung  und  Rechtswissencraft,  1814;  Geschichte 
des  romischen  Rechts  im  Mittelalter,  1815-31;  System  des 
heutigen  romischen  Rechts,  1840-49;  Das  Obligationenrecht, 
1851-53. 

SCHAFFNER,  W. :  Die  Entwickelung  des  internationalen  Privatrechts. 
1841. 

SCHANZ,  M. :  in  the  Philologus  (1883) ;  Analogisten  u.  Anomalisten  im 
romischen  Recht. 

SCHOELL  :  Legis  XII.,  Tab.  reliquiae.     Berlin,  1866. 

SCHRODER  :  Lehrbuch  der  deutschen  Rechtsgeschichte.    2d  ed.    1894. 

SCHULTE  :  Geschichte  der  Quellen  des  Canonischen  Rechts. 

SCRUTTON  :  Roman  Law  in  England. 

SEEBOHM,  F. :  The  English  Village  Community.     1883. 

SEELEY,  PROF.  :  The  Expansion  of  England. 

SIEGEL,  H. :  Das  deutsche  Erbrecht  nach  den  Rechtsquellen  des  Mit- 
telalters.  Heidelberg,  1853. 

Siete  Partidas.  The  earliest  edition  is  that  of  Montalvo,  published  in 
1491 ;  the  best,  that  of  Gregorio  Lopez,  published  in  1555,  at 
Salamanca,  under  royal  authority.  There  is  an  edition  by  the 
Spanish  Academy  of  History,  1807. 

SMITH  :  Dictionary  of  Greek  and  Roman  Antiquities. 

SMITH,  SIR  THOMAS  :  De  Republica  Anglorum ;  the  Manner  of  Gov- 
ernment or  Policie  of  the  Realme  of  England.  1583. 

SOHM,  RUDOLF:  Die  frankische  Reichs-  und  Gerichtsverfassung. 
Weimar,  1872 ;  Institutionen  des  romischen  Rechts.  Leipsic,  1884. 
5th  ed.,  1891.  English  translation  of  4th  ed.  by  J.  C.  Ledlie, 
Oxford,  1892,  with  Introductory  Essay  by  Erwin  Grueber; 


TITLES  OF  LEADING  AUTHORITIES  CITED          lix 

Kirchenrecht,  1892;  article  on  the  German  Code  of  1900,  in  The 

Forum  for  October,  1899. 

SOMOZA  :  Curso  de  Derecho  constitutional  nicaragiiense.  Managua,  1899. 
SOPHOCLES  :  Antigone.     Plumptre's  trans. 
SOTO,  DOMINIC  :  Of  Justice  and  Law.     1560. 
SPELMAN  and  WILKINS'S  Councils  and  Ecclesiastical  Documents  (ed. 

Haddan  and  Stubbs). 
SPETER,  H. :  La  Constitution  Juridique  de  L'Empire  Colonial  Britan- 

nique.     Paris,  1906. 
STEENSTRUP:    Inledning  i  Normannertiden.     Copenhagen,  1876.    Of 

which  there  is  a  French  translation  in  the  Bulletin  de  la  SociMe 

des  antiquaires  de  Normandie,  vol.  x. 

STEPHEN,  SIR  J.  F. :  A  History  of  the  Criminal  Law  of  England,  Lon- 
don, 1883 ;  A  Digest  of  the  Law  of  Evidence,  5th  ed.,  1899. 
STINTZING:    Verhaltniss  d.  1.  a.  sacramento  zum  Verfahren  durch 

sponsio  praejudicialis.     Heidelberg,  1853. 

STOBBE  :  Geschichte  der  deutsch  Rechtsquellen.    Leipsic,  1860-64. 
STORY,  J. :  Conflict  of  Laws.    7th  ed. 
STREET,  T.  A. :  The  Foundations  of  Legal  Liability.     1906. 
STUBBS,  WILLIAM  :  Constitutional  History ;  Select  Charters.    8th  ed. 

Oxford,  1895. 
SUAREZ,    FRANCISCO    (1548-1617) :    Tractatus   de   Legibus   ac   Deo 

Legislatore. 

TACITUS:  Germania;  Annals. 

TAYLOR,  HANNIS:  The  Origin  and  Growth  of  the  English  Consti- 
tution, 8th  ed. ;  International  Public  Law ;  Jurisdiction  and 
Procedure  of  the  Supreme  Court  of  the  United  States. 

Theodosian  Code  and  Theodosian  and  Post-Theodosian  Novels.  For 
these  two  codes,  edited  on  a  new  plan,  see  3d  vol.  of  Kriiger, 
M.  and  S.'s  Collectio  lib.  jur. 

THIERRY,  A. :  History  of  the  Tiers-Etat. 

THORPE,  B. :  Ancient  Laws  and  Institutes  of  England.    2  vols.    1840. 

THUCYDIDES  :  History  of  the  Peloponnesian  War. 

TISSOT'S  "Tr&or."    Metz,  1811. 

TOCQUEVILLE  :  Democracy  in  America,  Bowen  ed. ;  Oeuvres  Completes. 

TODD  :  Parliamentary  Government  in  England. 

TORRE:  Constituci6n  mexicana.    Mexico,  1904. 

TORRENS  :  History  of  Cabinets. 

Twiss,  SIR  TRAVERS  :  The  Law  of  Nations,  Peace  and  War.  Oxford, 
1861-63. 

VALIN,  RENE  J. :  Commentaire  sur  1'Ordonnance  de  la  marine  du  mois 
d'aout,  1681,  Paris,  1836;  Traite"  des  Prises,  ou  principes  de  la 
jurisprudence  franchise  concernant  les  prises  qui  se  font  ser  mer. 
Rochelle  et  Paris,  1782. 

VALLARTA  :  Juicio  de  amparo  y  Votos.    Mexico,  1895. 


Ix  TITLES  OF  LEADING  AUTHORITIES  CITED 

VAINBERG  :  Le  nexum  ...  en  droit  remain.     Paris,  1874. 

VAN  ZYL  :  The  Judicial  Practice  of  South  Africa.  London  and  Cape 
Town,  1902. 

VATTEL:  Le  Droit  des  Gens.  Nouvelle  e"d.,  Pradier-Fode're'.  Paris,  1863. 

VICTORIA,  FRANCISCO  DE  :  Relectiones  Theologicae,  of  which  the  sixth 
part  is  entitled  De  Jure  Belli.  Lyons,  1557. 

VIOLLET  :  Histoire  du  droit  civil  franc.ais.     1893. 

VOET,  J. :  Comm.  ad  Pandectas  (especially  lib.  i.,  tit.  4,  pres.  6,  de 
statutis). 

VOET,  P. :  De  statutis  eorumque  concursu  liber  singularis.  Amster- 
dam, 1661. 

VOIGT,  DR.  MORITZ  :  Das  jus  naturale,  aequum  et  bonum,  und  das  jus 
gentium  der  Romer,  4  vols.,  Leipsic,  1856-75;  Die  XII.  Tafeln, 
2  vols.,  Leipsic,  1883;  Rocaische  Rechtsgeschichte,  vol.  1, 
Leipsic,  1892. 

WACHTER,  C.  G. :  Ueber  die  Collision  der  Privatrechtsgesetze  im 
Archiv  fur  die  civilistische  Praxis,  vols.  XXIV.  and  XXV  (1841, 
1842). 

WAITZ,  GEORG  :  Deutsche  Verfassungsgeschichte.    Kiel,  1865-66. 

WALTER  (trad,  par  Laboulaye) :  Procedure  civile  chez  les  Remains. 

WARNKONIG  :  Flandrische  Staats-  und  Rechtsgeschichte ;  Franzosische 
Staats-  und  Rechtsgeschichte. 

WESTLAKE,  J. :  Private  International  Law,  or  the  Conflict  of  Laws. 
1858. 

WHARTON,  F. :  Treatise  on  the  Conflict  of  Laws,  or  Private  Inter- 
national Law.  1872. 

WHEATON,  HENRY:  Elements  of  International  Law,  8th  ed.,  Dana, 
Boston,  1886;  History  of  the  Law  of  Nations,  Philadelphia,  1845. 

WILSON,  WOODROW  :  The  State.     Boston,  1892. 

WINCKLER,  BENEDICT  :  Principiorum  Juris  Libri  Tree.     Leipsic,  1615. 

WINDSCHIED  :  Pandektenrecht. 

WINDSOR,  JUSTIN  :  Narrative  and  Critical  History. 

WLASSAK  :  Edict  und  Klageform.     1882. 

WORDSWORTH:  Fragments  and  Specimens  of  Early  Latin.  Oxford, 
1874. 

ZACHARIAE:  Historiae  juris  Graeco-Romani  delineatio,  Heidelberg, 
1839;  Collectio  librorum  juris  Graeco-Romani  ineditorum.  Leip- 
sic, 1852. 

ZEUMER:  Leges  Visigothorum  Antiquiores.     1894. 

ZEUSS  :  Die  Deutschen  und  die  Nachbarstamme. 

ZOCCA-ROSA  :  II  commento  di  Gaio  alle  legge  delle  XII.  Tavole.  Roma, 
1888. 

ZOUCHE,  R. :  Elementa  Jurisprudence. 

ZUMPT,  C.  G. :  Ueber  Ursprung,  Form,  u.  Bedeutung  d.  Centum- 
viralgerichts.  Berlin,  1838. 


TABLE   OF  CASES  CITED 

PAOE 

Adair  v.  United  States,  Oct.  Term,  1907,  S.C.U.S       .     ' "' '.  \  .    538 

Adams  v.  Palmer,  51  Me.  481,  483       ...        .        .  .557 

Allen  v.  Flood  (1898),  A.C.  1 537 

Allen  v.  Flood  (1895),  2  Q.B.  21          .        .        .  '      .        .  .    537 

Am.  Ins.  Co.  v.  Canter,  1  Pet.  42         .        .        .        .    '  'i  .     166 

Antelope,  The,  10  Wheat.  66       .        ..       .        .,       .    't':;l'  .623 

Arthur  v.  Oakes,  63  Fed.  Rep.  310      .        .       :.'iu'.'l/'   .  •'  .    541 

Ashby  v.  White,  2  Ld.  Raym.  938,  1  Bro.  P.C.  45       .    ' '  .  .    576 

Ashford  v.  Thornton  (1818),  1  Bar.  and  Aid.  405        ;;  !: }  ,  .      69 

Bank  v.  Williams,  46  Mass.  618 623 

Barnes  v.  McCrate,  32  Me.  442     .        .        .        .        .        .        .    535 

Barnett  v.  Kinney,  147  U.S.  476 623 

Barron  v.  Baltimore,  7  Pet.  243,  247 461 

Barren  v.  Barron,  24  Vt.  375  .  .  ^V  .'  .  '  .  .  556 
Bartemeyer  v.  Iowa,  18  Wall.  129,  140  •£" : ' ' '  ;  :  .  .  .461 

Bate's  Case,  2  St.  Tr.  371 ;  Rep.  xii.,  33 357 

Bayard  v.  Singleton  (1787),  Martin  (N.C.)  48      . '      .        .        .439 

Beard  v.  Poydras,  4  Martin  348 165 

Blackinton  v.  Blackinton,  141  Mass.  432,  435,  436  .  .  .  558 
Blankard  v.  Galdy,  2  Salk.  411  .  .  .  '.  '  .'/'•"  •  489 
Bogardus  v.  Trinity  Church,  4  Paige  198  .  '  '.'  .  ilj.  .  437 
Brewster  v.  Miller's  Sons  &  Co.,  101  Ky.  358  ....  541 
British  So.  Afric.  Co.  v.  Companhia  De  Mocambique,  A.C.  602  .  578 
Bromage  v.  Prosser,  B.  &  C.  255  .  .  .  .  .  .  534 

Burr's  Trial          .         . 464 

Buster  v.  Newkirk,  20  Johnson  (N.Y.)  75    .        .  ''  '  ;    ' ;'.  '      .544 

Calder  v.  Bull,  3  Ball.  386,  396,  399  .  •.  .  ...  461 
Calvin's  Case,  2  St.  Tr.  559  .  .  ;  -1  .'  V";  358,463 

Carroll  v.  Greenwich  Ins.  Co.,  199  U.S.  401         .        .       '.  .    543 

Carr's  Case,  6  St.  Tr.,  p.  929        .        .'        .        .        .         .  .388 

Castle  v.  Houston,  19  Kan.  417        ;'.'.''     .        .        .        .  .    534 

Cawdrey's  Case,  5  Rep.  I.,  1.  iii.  xv.,  ed.  of  1826         .     '   .  .    352 

Chatham  Furnace  Co.  v.  Moffatt,  17  Mass.  403  .  .  .  .552 
Chattanooga  Foundry  and  P.  Works  v.  Atlanta,  203  U.S.  390  .  543 

Chatterton  v.  Secretary  of  State,  2  Q.B.  189        .  !  .•''••.-'  .    535 

Chicago,  R.I.  &  P.  Ry.  Co.  v.  McGlinn,  114  U.S.  542  .        .  .     166 

Clark  v.  Graham,  6  Wheat.  577           .        .        .        .;'   .  .    623 

Cobbett  v.  Grey,  4  Ex.  744           .        .        ,;        .        .        .  .     532 

Coburn  v.  Harvey,  18  Wis.  156,  158    .        .        .        .     '    .  .173 

Coffin  v.  Coffin,  4  Mass.  1     .         .      'V      '.        .        .        ;  .535 

Ixi 


bdi  TABLE  OF  CASES  CITED 

Cole  v.  Cassedy,  138  Mass.  437 552 

Cole  v.  Cunningham,  133  U.S.  107,  126 623 

Cook  v.  Fountain  (1676),  3  Swanst.  600 509 

Com.  v.  Caton,  4  Call  (Va.)  5-21  440 

Com.  v.  Green,  17  Mass.  515,  539-540 623 

Compton,  Proceedings  against,  11  St.  Tr.  1123    .        .        .        .  394 

Cowley  v.  Smyth,  46  N.J.L.  386          ...       .        .        .        .        .  552 

Dalrymple  v.  Dalrymple,  2  Haggard  54  .        .        .        .  555 

Danby's  Impeachment  (Parl.  Hist.,  vol.  iv.,  p.  1054)  .        .        .  387 

Dartmouth  College  v.  Woodward,  4  Wheat.  636          ...  582 

Davidson  v.  New  Orleans,  96  U.S.  97 462 

Davis  v.  State,  68  Ala.  58    .        . 438 

Dawkins  v.  Paulet,  L.R.  5  Q.B.  94 535 

Decision  of  the  Lords  of  the  Privy  Council,  2  P.  Wms.  75  .         .  489 

Dillon  v.  Balfour,  20  L.R.  Ir.  600 535 

Dred  Scott  v.  Sandford,  19  How.  393  .        .        .     gg     .        .  458 

Dutton  v.  Howell,  Show.  Parl.  Ca.  31,  32    .      . _,.'    'I.     .  '..        .  489 

Edelstein  v.  Schuler  &  Co.,  2  KB.  144  .  .  ..'.'..  .  518 
Entick  v.  Carrington,  19  St.  Tr.  1030  .  .  .  .  353,388 

Fletcher  v.  Peck,  6  Cranch  87 440,  512 

Florida  Cent.  R.R.  Co.  v.  Schulte,  103  U.S.  118  ...    511 

Foot  v.  Card,  58  Conn.  1      .         .        .,-  - 557 

Fores  v.  Wilson,  Peake  55  .         .         ..-_«...        .        .    558 

Forsyth  v.  Hammond,  166  U.S.  506,  519  .  '.j '.;  ...  .  .  461 
Foss  v.  Hildreth,  10  Allen  (Mass.)  76  .  .  . .  '  ..  .  .534 
Frank  v.  Babbitt,  155  Mass.  112,  115  .  .  .  .  .623 

Fuller's  Case,  12  Rep.  750  .        /      .        .        .        .        .352 

Genesee  Chief  v.  Fitzhugh,  12  How.  443      .        .        .        .        .    513 

Gillespie  v.  People,  188  111.  176 541 

Gilman  v.  Ketchum,  84  Wis.  60 623 

Girard  v.  The  City  of  Philadelphia,  4  Rawle,  333         ...    437 
Gloucester  Grammar  School  Case,  Y.B.  II.  Hen.  IV.,  47,  pi.  21  .    542 
Godden  v.  Hales,  11  St.  Tr.  1165;  S.C.  2  Show.  475    .        .        .    393 
Goodwin  v.  Robarts,  L.  R.  10  Ex.  337     ...  .,',....      •        •    518 

Governor  Wall's  Case,  28  St.  Tr.  51     .        ...        ..       .589 

Green  v.  Van  Buskirk,  7  Wall.  139       .         .        ...»        .623 

Green  v.  Van  Buskirk,  5  Wall.  307, 312       .        ..       .       ,.        .623 

Guss  v.  Nelson,  200  U.S.  298       .        .        .        . '........    '.'.  .      .    543 

Hampden's  Case  (ship  money),  3  St.  Tr.  825  sg.  ....        .  368 

Harrison  v.  D.  of  Rutland,  1.  Q.B.  (C.A.)  142     .  .        .        .  536 

Hernandez,  Succession  of,  46  La.  Ann.  962          .  ..        »        .  623 

Hickman  v.  Boffman,  Hardin's  Reports,  356       .  .        ..'-..  438 


TABLE  OF  CASES  CITED  bdii 

Hilton  v.  Guyot,  159  U.S.  113 623,  626 

Holmes  v.  Walton  (cited  in  9  N.J.L.  444) 440 

Hundley  v.  L.  and  N.  R.R.  Co.,  105  Ky.  162      .        .        .        .541 
Huntington  v.  Attrill,  146  U.S.  657,  666 623 

Inglis  v.  Trustees  of  Sailors'  Snug  Harbor,  3  Pet.  100,  139  .       .    582 

Jackson  v.  Steamooat  Magnolia,  20  How.  329     ....    436 
Jacobs  v.  Cohen,  183  N.Y.  207     .        .        .         ....        .         .541 

Keeble  v.  Hickeringill,  II.  East,  575,  n 537 

Kirkpatrick  v.  Eagle  Lodge  No.  32,  26  Kan.  390         ...    535 
Kneesy  v.  Exner,  Brooklyn  Superior  Court,  N.Y.        .        .        .    557 

Lamar  v.  Micou,  112  U.S.  452 559 

Lattin  v.  McCarty,  41  N.Y.  107 578 

Lawrence  v.  Fox,  20  N.Y.  268 561 

Lorman  v.  Beason,  8  Mich.  18,  25 173 

Luke  v.  Lyde,  2  Burr.  882 192 

Macdonald  v.  Tacquah  Gold  Mines  Co.,  13  Q.B.D.  535,  539         .  578 
Mangan  v.  State,  76  Ala.  60         .        .        ....        .        .438 

Marbury  v.  Madison,  1  Cranch  137,  440 512 

Martin  v.  Lessee  of  Waddell,  16  Pet.  410 434 

May  v.  Bank,  122  111.  557             623 

McElvaine  v.  Brush,  142  U.S.  155,  158 461 

Mehrhoff  v.  Mehrhoff,  U.S.C.C.,  26  Fed.  Rep.  13          ...  557 

Middlesex,  Impeachment  of         .......  362 

Milne  v.  Milne,  17  La.  46 582 

Minnesota  Mining  Co.  v.  National  Mining  Co.,  3  Wall.  332  .         .511 

Mogul  Steamship  Co.  v.  McGregor,  A.C.  25          ....  542 

Moses  v.  Macfarlen,  2  Burrows  1005 564 

Mostyn  v.  Fabregas,  Cowp.  161 589 

Murray  v.  The   Hoboken  Land  Co.,  18  How.  272        ...  464 

National  Protection  Asso.  v.  Cummings,  170  N.Y.  315         .         .    541 

Nereide,  The  (1815),  9  Cranch  388,  423 598 

Nitro-Glycerine  Case,  The,  15  Wall.  524 570 

N.Y.  &c.  R.R.  Co.  v.  Schaffer,  65  Ohio  414      :f>  ,  .      .        .        .541 

Olcott  v.  Bolton,  50  Neb.  779      .     ...:.,       „       .552 

Paget  v.  Gee,  Amb.  App.  810      .        .        .        .        ...    509 

Palmer  v.  Wick,  etc.,  Steam  Shipping  Co.,  A.C.  333    ..    -.       *    566 
Patterson  v.  Winn,  5  Pet.  233     .         .        »i      .        .        .        .437 

Pennoyer  v.  Neff,  95  U.S.  714,  723 623 

People  v.  Marcus,  185  N.Y.  257  .        ...;..       .        .    541 


Ixiv  TABLE  OF  CASES   CITED 

Peoria  Gas  &  Electric  Co.  v.  Peoria,  200  U.S.  48       ;  .;  •  • ,.   .     .  543 

Phillips  v.  Eyre,  L.R.  4  Q.B.  225         .         .        u  '    • '..    ...        .  589 

Pierson  v.  Post,  3  Caines  (N.Y.),  175  .        .     .   w.       .     .  •<,  544 

Police  Jury  v.  Hampton,  5  Martin,  N.S.  389        .     . .;..       .        .564 

Quinn  v.  Leathern  (1901),  A.C.  495,  542      .        .        ..      ;     525,538 

Railroad  v.  Kellogg,  94  U.S.  469          ....    >   •,        .  570 

Raley  v.  Smith,  73  Mo.  310 v       •*  552 

Rech  v.  Cockell,  9  Ves.  375 556 

Reg.  v.  Millis,  1843,  10  Cl.  and  Fin.  655       .        .        .        .  ,      .  554 

Reg.  v.  Keyn,  L.R.  2  Ex.  Div.  63-239         .        .        .      595,  600,  627 

Rolle's  Case,  Orders  and  Decrees  in  the  Exchequer     .        .        .  367 

Roper's  Case,  12  Rep.  47,  vi.  258 352 

Ross  v.  Ross,  129  Mass.  243,  245 623 

Rye  House  Plot  Trials  (Russell  &  Sidney),  9  St.  Tr.  577s?.          .  390 

Sackett  v.  Sackett,  8  Pick.  309 437 

San  Mateo  County  v.  So.  Pac.  R.R.  Co.,  116  U.S.  138         .        .  460 

Satanita,  The  (1895),  P.  (C.A.)  248  (1897),  A.C.  59     ...  561 
Sawyer,  In  re,  124  U.S.  200,  219          .         .        :.,-..      .         .         .461 

Scott  v.  Stansfield,  L.R.  3  Exch.  220 535 

Seven  Bishops,  Case  of,  12  St.  Tr.  183 395 

Smith  v.  Alabama,  124  U.S.  465 464 

Smith  v.  Howard,  28  Iowa  51 535 

Smith  v.  Union  Bank,  5  Pet.  518,  527 623 

Sommersett's  Case,  20  St.  Tr.  1 522 

Sottomayor  v.  De  Barros,  3  P.D.  (C.A.)  1    .         . .       .         .         .613 

State  v.  Goodwill,  33  W.Va.  179 541 

State  v.  Julow,  129  Mo.  163 541 

State  v.  Kreutzberg,  114  Wis.  530 541 

State  v.  Tutty,  41  Fed.  Rep.  753,  758 557 

St.  John's  Case,  2  St.  Tr.  899 360 

Steel  v.  Steel,  1  Ired.  (Eq.)  452  556 

Stafford's  Trial 371 

Button's  Hospital,  Case  of,  10  Rep.  32  b 582 

Swift  v.  Gifford,  2  Lowell  110 544 

Thomas  v.  Sorrel,  Vaughan,  330-339 393 

Thompson  v.  Utah,  170  U.S.  343 461 

Tilton  v.  Beecher,  59  N.Y.  176    .         .     '7  w  •  •{•>/.<;*,  .i<  ^     .         .  535 

Tobin  v.  The  Queen,  16  C.B.N.S.  310 527 

Trevett  v.  Weeden  (Rhode  Island,  1786)      .      • -i       -v        .         .  439 

Triquet  v.  Bath  (1764),  3  Burrows,  1478     .     -  .  •      .    iff. .  -  v«-  598 

Tweddle  v.  Atkinson,  1  B.  &  S.  393     .       ..'—*•       .  •       .        .  561 

Udny  v.  Udny,  L.R.  1  Sc.  App.  441,  457     .       V       .     -;  .      »  613 


TABLE  OF  CASES  CITED  Ixv 

United  States  v.  Crosby,  7  Cranch  115 623 

United  States  v.  422  Casks  of  Wine,  1  Pet.  547  .  .  .  .511 
United  States  v.  Wong  Kim  Ark,  169  U.S.  649  .  .  .  .463 

Van  Ness  v.  Hamilton,  19  Johns  (N.Y.)  349  ....  535 
Venus,  The,  8  Cranch  253 163 

Wachter  v.  Quenzer,  29  N.Y.  552 535 

Wallace  v.  Georgia,  C.  &  N.  Ry.  Co.,  94  Ga.  732          ...    541 

Walworth  v.  Holt,  4  My.  and  Cr.  635 509 

Warner  v.  Beers,  23  Wend.  (N.Y.)  103,  122  .  .  .  .580 
Westbury-on-Severn  R.S.A.  v.  Meredith,  30  Ch.  D.  387  .  .  578 

Westlake  v.  Westlake,  34  Ohio  St.  R.  621 557 

Whitbourne  v.  Williams,  2  K.B.  722 558 

White  v.  Carroll,  42  N.Y.  161 535 

Whitwell  v.  Continental  Tobacco  Co.,  64  L.R.A.  689  .  .  .  543 
Wood  worth  v.  Spring,  11  Allen  (Mass.),  321  .  .  .  .558 
Wood  worth  v.  Spring,  4  Allen  (Mass.),  321  .  .  .  .623 

Wren  v.  Weild,  L.R.  42  B.  213 535 

Wright  v.  Lothrop,  149  Mass.  385 535 

Wright  v.  Sill,  2  Black  544 511 

Yick  Wo  v.  Hopkins,  118  U.S.  356,  369 462 

Young  v.  Hichens,  6  Q.B.  606      .        .        .        ....    544 


PART   I 
HISTORICAL 


CHAPTER   I 

ANALYTICAL  AND   HISTORICAL  METHODS  CONTRASTED 

1.  The  expounders  of  the  Science  of  Politics,  of  which  Juris- 

>  .  i •     •  i  •  i  •    •  i     i    dence a 

prudence  is  only  a  distinct  and  important  branch,  are  divided  branch  of 

into  two  schools  whose  methods  *  of  investigation  and  demon-  Of  Poises6 

stration  are  radically  different  from  each  other.    To  a  student 

of  the  older  or  Analytical  School  a  constitution,  a  code  of  laws 

or  customs,  present  themselves  as  things  that  have  existed 

from  the  very  beginning  in  their  present  form.    His  primary  Analytical 

duty  therefore  involves  only  such  an  analysis  of  their  various 

provisions  as  will  reveal  the  existing  rules  under  which  rights 

and  duties  are  defined  and  remedies  administered.    With  the 

history  of  the  processes  through  which  such  constitutions  or 

codes  came  into  existence  he  has  nothing  directly  to  do;  in  his 

view  the  history  of  law  is  really  no  part  of  Jurisprudence ;  it 

is  simply  a  sidelight  which  may  or  may  not  be  used  as  an  aid 

to  interpretation.     Putting  aside  the  teachings  of  history, 

except  such  as  are  permanent  in  nature,  and  rejecting  the  fact 

that  political  and  legal  institutions  can  best  be  studied,  not  as 

1  The  claim  IB  often  made  that  there  are  four  methods :  the  metaphysical 
or  a  priori,  the  analytical,  the  historical,  and  the  comparative.  Certainly  the 
last  is  simply  a  branch  of  the  historical.  Mr.  Bryce  admits  that  it  is  simply  an 
"extension  of  the  historical  method."  (Studies  in  Hist,  and  Jur.,  p.  620.) 
There  are  but  two  distinct  schools,  the  analytical  and  the  historical.  It  should 
be  said,  however,  that  the  first  is  divided  into  two  branches,  the  one  beginning 
with  the  investigation  of  the  abstract  ideas  of  right  and  law  in  their  relation 
to  morality,  freedom,  and  the  human  will  generally;  the  other  beginning  with 
the  actual  facts  of  law  as  they  now  appear,  when  metaphysics  and  ethics  are 
excluded  from  view.  The  difference,  in  a  general  way,  is  that  which  divides 
German  expounders  of  Naturrecht  from  the  Benthamites. 

3 


THE  SCIENCE  OF  JURISPRUDENCE 


As  applied 
by  Machia- 
velli,  Bodin, 
and  Hobbes. 

Separation 
of  the  sci- 


Aristotle 
the  founder 
of  political 
science. 


His  separa- 
tion of 
ethics  from 
politics. 


arbitrary  or  imaginary  combinations,  but  rather  as  belonging 
to  societies  of  definite  historical  types,  the  student  of  the 
analytical  school  proceeds,  with  the  aid  of  an  a  priori  process, 
to  elaborate  his  own  conception  of  the  inherent  nature  of 
rights  and  law.  Such  in  general  terms  was  the  nature  of  the 
method  applied  to  the  study  of  the  Science  of  Politics  upon  its 
revival  by  Machiavelli,  Bodin,  and  Hobbes,  after  the  existing 
state  system  of  Europe  had  taken  on  definite  and  permanent 
form.  The  fact  should  never  be  lost  sight  of  that  the  separa- 
tion of  the  sciences,  to  which  we  are  so  accustomed,  and  which 
we  take  for  granted,  was  unknown  to  that  remote  antiquity 
in  which  the  world  with  all  its  phenomena  was  studied  as  a 
whole.  Not  until  that  single  problem,  in  which  the  facts  of 
nature  and  the  doings  of  man  were  alike  conceived  of  as  or- 
dained by  the  gods,  was  gradually  broken  up  into  minor  prob- 
lems was  the  line  drawn  between  those  sciences  which  deal 
with  external  nature,  including  theology  and  metaphysics, 
and  those  which  deal  with  the  actions  of  men.  If  we  follow 
the  Greeks,  we  must  regard  ethics  as  dealing  essentially  with 
man  in  his  relations  to  his  fellow-men,  —  politics  as  dealing 
essentially  with  man  not  simply  as  a  member  of  society,  but 
as  a  member  of  some  particular  society  organized  in  a 
particular  way,  and  exercising  supreme  authority  over  its 
members.  The  fundamental  maxim  of  Aristotle,  the  founder 
of  the  Science  of  Politics,  is  that  man  is  born  to  be  a 
citizen — "AvOpwrros  <f>v<rei  TTOXITIKOV  fwov.  He  cannot  iso- 
late himself  without  becoming  either  less  or  more  than  man 
($  driptov  9}  0eo9).  The  cityless  man  (a7roXt<?)  —  the  natural 
man  of  Hobbes  and  Rousseau  —  must  be  more  or  less  than 
man,  —  either  superhuman  or  a  monster.  The  assumption 
is  that  the  state  is  a  prime  necessity  to  man ;  the  state  is 
prior  in  idea  to  the  individual;  the  normal  conception  of  man 
is  of  a  man  in  a  state  of  civilization.  On  those  grounds 
Aristotle  went  on  from  his  Ethics  to  the  composition  of  his 


ANALYTICAL  AND  HISTORICAL  METHODS  5 

Politics.    He  made  the  capital  advance  of  separating  ethics 
from  politics. 

After  the  Roman  Empire  completed  the  work  which  the  Revival  of 
Macedonian  supremacy  had  begun  by  reducing  men  of  all  Of  politics! 
kindreds  and  nations  to  a  common  subjection,  the  scientific 
study  of  politics  expired  with  political  independence.  Not 
until  after  a  sleep  of  many  centuries,  broken  only  by  a  few 
indistinct  mutterings  in  the  Middle  Ages,  was  there  a  serious 
revival  of  interest  in  the  theory  of  politics  which  came  as  a 
part  of  the  general  movement  known  as  the  Renaissance. 
The  twelfth  century  witnessed  the  enthusiastic  revival  of  the 
study  of  Roman  law;  the  thirteenth,  the  spread  of  the  scho- 
lastic philosophy;  the  fourteenth,  the  appearance  in  Italy  of 
a  new  literature  adorned  first  by  the  name  of  Dante,  then  by 
that  of  Petrarch.  Along  with  this  literary  revival  there  came 
a  general  uprising  throughout  Europe  of  the  human  mind 
against  the  entire  system  of  authority,  spiritual  and  temporal, 
by  which  men  were  governed,  an  uprising  that  manifested  a 
tendency  to  apply  thought  to  practical  ends  through  the 
reorganization  of  society  upon  fixed  and  definite  principles. 
Under  the  new  influences  the  Middle  Ages,  essentially  un- 
political, gave  birth  at  the  close  to  Politics,  and  with  them 
appeared  "the  first  of  a  class  of  persons  whom  friends  and 
enemies  may  both,  though  with  different  meanings,  call  ideal 
politicians."  *  Hard  as  it  may  be  to  apply  that  term  in  any 
except  a  bad  sense  to  Machiavelli,  to  that  epoch  he  belongs,  ita modem 
and  with  him  the  modern  study  of  politics  begins.  Gentilis,  Ji"hyMa?m' 
one  of  the  founders  of  international  law,  who  followed  upon  chiaveUi- 
the  heels  of  Machiavelli,  defended  him  on  the  ground  that  his 
Prince  was  only  a  veiled  satire  upon  the  vices  of  princes, 
intended  as  an  exposition  of  their  tyranny  and  as  an  admoni- 
tion to  the  people.  It  cannot  be  proven  that  Machiavelli 
really  sanctioned  either  fraud  or  treachery.  For  the  first  time 

1  Bryce,  Holy  Roman  Empire,  p.  232. 


6  THE  SCIENCE  OF  JURISPRUDENCE 

since  Aristotle  we  find  in  him  the  serene  spirit  of  a  man  of 
science  attempting  to  establish  the  groundwork  of  his  reason- 
ing through  the  revival  of  the  neglected  separation  of  ethics 
from  politics  in  a  form  so  extreme  as  to  reach  "even  to  the 
point  of  apparent  paradox  and  scandal.  Machiavelli  takes  no 
account  of  morality.  He  assumes  certain  ends  to  be  in  the 
view  of  a  prince  or  nation."  *  While  it  may  be  true  that  his 
works  are  more  concerned  with  the  details  of  statecraft  than 
with  the  analysis  of  the  state,  the  fact  remains  that  he  did 
study  the  nature  of  sovereignty.  "  I  have  made,"  he  says,  "  a 
His  treatise,  De  Principatibus,  where  I  go  to  the  depth  of  my  ability 

Pnnapc.       |nj.Q  £ne  congelation  of  this  matter,  discussing  what  is  the 

nature  of  sovereignty,  what  kinds  of  it  there  are,  how  they  are 
acquired,  how  maintained,  and  for  what  causes  lost."  As  the 
Principe  is  an  offshoot  from  the  main  theme  of  the  Discorsi, 
we  must  look  to  both  for  the  speculative  fruits  of  the  author's 
experience  and  observation  combined  with  his  deductions 
from  Roman  history.  Both  works  are  directed  to  the  same 
philosophic  end,  —  the  analysis  of  the  conception  of  the  state, 
studied  under  the  two  main  types,  republican  and  monarchical. 

Jean  Bodin.  Machiavelli's  Principe  was  completed  before  the  end  of  1513, 
and  in  1530  was  born  Jean  Bodin,  who,  after  lecturing  for  some 
time  on  jurisprudence  at  Toulouse,  began  to  practice  at  the 

Common-  bar  at  Paris.  In  1576  appeared  his  Les  six  livres  de  la  R6- 
publique,2  which  represents  the  first  attempt  made  in  modern 


modem        times  to  construct  an  elaborate  system  of  political  science, 

the  state.      embodying  the  modern  theory  of  the  state  whose  vital  point, 

the  doctrine  of  political  sovereignty,  was  stated  at  the  earliest 

1  Pollock,  History  of  the  Science  of  Politics,  p.  42.    See  also  F.  Costero,  Preface 
to  II  Principe,  Milan,  etc.,  1875. 

2  Sir  William  Hamilton  has  said  :   "From  the  time  when  Aristotle  wrote  his 
eight  books  of  Politics,  until  the  time  when  Montesquieu  wrote  his  thirty-one 
books  on  The  Spirit  of  Laws,  the  six  books  of  the  Republic  of  Bodinus  is  the  ablest 
and  most  remarkable  treatise  extant  on  the  philosophy  of  government  and 
legislation;    and  even  until  the  present  day  these  three  authors  stand  out  as 
the  great  political  triumvirate."     In  1586  Bodin  issued  a  Latin  version  of  his 
magnum  opus,  for  the  use  chiefly  of  English  students  of  law  and  politics. 


ANALYTICAL  AND  HISTORICAL  METHODS  7 

possible  moment  perhaps  after  the  completion  of  the  existing 
European  state  system  in  which  the  idea  of  territorial  sover- 
eignty is  the  basis  of  all  international  relations.  Bodin  clearly 
announces  that  in  every  independent  community  governed  by 
law  there  must  be  some  authority,  whether  residing  in  one 
person  or  several,  whereby  the  laws  themselves  are  established, 
and  from  which  they  proceed.  That  authority,  while  not  above 
duty  and  moral  responsibility,  must,  as  the  source  of  law, 
be  above  the  law;  that  is,  above  the  positive  laws  as  we  would 
now  say  of  the  particular  state.  "Sovereignty  is  a  power  su-  Definition 
preme  over  citizens  and  subjects,  itself  not  bound  by  the  laws."  ef 
That  kind  of  legal  supremacy  of  the  state  was  scarcely  conceiv- 
able prior  to  the  process  of  emancipation  through  which  the 
medieval  European  states  acquired  local  habitations,  perma- 
nent establishments,  and  definite  boundaries.  While  Bodin 
declares  that  the  absolute  power  in  the  state  which  we  call 
the  sovereign  owes  no  legal  duties  to  subjects  or  citizens,  he 
admits  that  it  owes  moral  duties;  that  is,  in  the  juridical  lan- 
guage of  his  time,  it  is  bound  by  the  law  of  nature.  By  dis- 
tinguishing  legal  obligation  in  the  strict  sense  from  purely 
moral  duties  on  the  one  hand,  and  from  the  duties  created  by  °bljgation 

and  moral 

convention  between  independent  powers  on  the  other,  Bodin  duty, 
paved  the  way  for  the  clear  separation  of  the  legal  from  the 
ethical  sphere  of  thought  within  political  science  itself. 

Hobbes,  whose  analytical  method  Bodin  definitely  antici-  Hobbes's 
pated,  was  born  in  1588,  and  his  Leviathan,  or  the  Matter,  1651    un> 
Form,  and  Power  of  a  Commonwealth,  Ecclesiastical  and  Civil, 
appeared  in  1651.     Not  content  to  rest  the  doctrine  of  sov- 
ereignty as  Bodin  had  in  the  preceding  century  on  a  pure 
analysis  of  the  fact  of  civil  government,  Hobbes  attempted 
to  fortify  it  by  cutting  off  all  excuse  for  disputing  the  authority 
of  the  state  by  creating,  a  priori,  an  imaginary  covenant  be-  Original 
tween  its  members,  familiar  to  later  publicists  as  the  Original  contract 
or  Social  Contract.    Under  that  needless  and  untenable  fiction 


8 


THE  SCIENCE  OF  JURISPRUDENCE 


Definition 
of  sover- 
eignty. 


Of  positive 
laws. 


it  was  not  enough  that  men  should  abandon  so  much  of  their 
natural  rights  as  is  inconsistent  with  living  in  peace,  there  must 
be  "  a  common  power  to  keep  them  in  awe,  and  to  direct  their 
actions  to  the  common  benefit."  Every  member  of  the  com- 
monwealth gives  up  to  the  chosen  head  the  right  to  govern 
himself  on  condition  that  every  other  member  does  the  same, 
and  thus  a  new  and  a  corporate  person  is  created,  "and  he 
that  carrieth  this  person  is  called  sovereign,  and  hath  sovereign 
power;  and  every  one  besides,  his  subject."  The  limits  of 
the  sovereignty  thus  created  are  defined  by  those  powers  or 
rights  of  the  individual  man  which  he  cannot  surrender  by 
any  covenant.  As  between  the  state  and  the  individual  laws 
are  to  be  obeyed  not  because  they  are  reasonable,  but  because 
the  state  has  so  commanded.  "The  Lawes  of  Nature,"  says 
Hobbes, "  are  not  properly  la wes,  but  qualities  that  dispose  men 
to  peace,  and  to  obedience.  When  a  Commonwealth  is  once 
settled,  then  they  are  actually  la  wes,  and  not  before ;  as  being 
then  the  commands  of  the  Commonwealth.1  .  .  .  Positive  are 
those  which  have  not  been  from  eternity ;  but  have  been  made 
lawes  by  the  will  of  those  that  have  had  the  Sovereign  power 
over  others.  .  .  .  Civil  law  is  to  every  subject  those  rules 
which  the  Commonwealth  hath  commanded  him  by  word, 
writing,  or  other  sufficient  sign  of  the  will,  to  make  use  of  for 
the  distinction  of  right  and  wrong;  that  is  to  say,  of  what  is 
contrary  and  what  is  not  contrary  to  the  rule."  It  is  the  merit 
of  Hobbes  to  have  put  it  beyond  all  question  that  right  and 
wrong,  in  the  legal  sense,  are  that  which  the  state  allows  and 
forbids,  and  nothing  else.  A  law  being  a  command  addressed 
to  the  subject,  it  must  be  communicated  in  order  to  be  effectual. 
"  Law  in  general  is  not  counsel  but  command ;  nor  a  command 
of  any  man  to  any  man ;  but  only  of  him  whose  command  is 
addressed  to  one  formerly  obliged  to  obey  him."  While  to 

1  Leviathan,  p.  138.  "  Daa  Recht  existirt  erst  vermoge  der  Sanction  der 
Rechtsgemeinschaft  des  einzelnen  Staates."  Von  Bar,  Daa  Internationale 
Privat-  und  Strafrecht,  p.  519. 


ANALYTICAL  AND  HISTORICAL  METHODS  9 

Aristotle  is  due  the  credit  of  separating  ethics  from  politics, 
it  is  through  Hobbes  that  we  derive  the  farther  separation  of 
that  which  is  wise  or  expedient  from  that  which  is  allowed  by 
positive  law,  as  it  is  usually  expressed,  of  policy  from  legality. 
But  after  defining  sovereignty  and  legality  with  great  power  Separation 
and  precision  Hobbes  made  it  necessary  to  carry  the  work  of 
division  farther  by  endeavoring  to  swallow  up  policy,  and  to 
a  considerable  extent  morality,  in  positive  law.  Not  until 
after  a  long  interval  was  the  process  of  separating  the  theory 
of  political  sovereignty  from  that  of  the  ethical  and  historical 
foundations  of  political  society  completed  in  England  by  John 
Austin,  who  published  his  Province  of  Jurisprudence  Deter-  Austin's 
mined  in  1832,  a  treatise  on  the  relation  between  ethics 
and  law,  in  which  the  way  was  opened  for  a  clear  conception 
of  a  pure  science  of  positive  law.  Assuming  the  sovereign 
authority  of  the  state  as  the  ultimate  source  of  laws  and  legal 
institutions  as  they  exist,  he  analyzed  and  classified  them 
without  regard  to  the  moral,  social,  or  historical  reasons  which 
may  have  moved  the  sovereign  to  approve  them.  "The 
matter  of  jurisprudence  is  positive  law :  law  simply  and  strictly 
so  called :  or  law  set  by  political  superiors  to  political  inferiors." 
The  essence  of  Austin's  quaint  and  pedantic  description  of 
positive  law  is  that  it  must  be  a  command  armed  with  a  defi- 
nite sanction  and  issuing  from  a  determinate  author.  Every  Positive  law 
positive  law  is  "set  by  a  sovereign  person  or  sovereign  body 
of  persons  to  a  member  or  members  of  the  independent  po- 
litical society  wherein  that  person  or  body  is  sovereign  or 
superior."  The  question  is  not  as  to  the  historical  origin  of 
the  principle,  but  as  to  its  present  authority.  "  The  legislator 
is  he,  not  by  whose  authority  the  law  was  first  made,  but  by 
whose  authority  it  continues  to  be  law."  Austin's  great  task 
was  therefore  to  distinguish  between  laws  properly  so  called 
and  laws  improperly  so  called.  The  word  "command"  is  Law  as  a 
the  key  to  his  analysis  of  law.  A  law  properly  so  called  is  a 


10  THE  SCIENCE  OF  JURISPRUDENCE 

command,  an  order  issued  by  a  superior  to  an  inferior,  and 
"  the  party  to  whom  it  is  directed  is  liable  to  evil  from  the  other 
in  case  he  comply  not  with  the  desire."  The  evil  is  called  a 
sanction,  and  the  command  or  duty  is  said  to  be  sanctioned 
by  the  chance  of  incurring  the  evil.  Thus  are  inseparably 
connected  the  terms  "  command,"  "  duty,"  and  "  sanction." 
To  employ  his  own  language,  "  each  of  the  three  terms  signifies 
the  same  notion,  but  each  denotes  a  different  part  of  that  no- 
tion, and  connotes  the  residue."  All  commands,  however,  are 
not  laws,  that  term  being  limited  to  those  commands  which 
oblige  generally  to  the  performance  of  acts  of  a  class.  Having 
thus  arrived  at  a  definition  of  laws  properly  so  called,  it  was 
necessary  in  the  next  place,  in  order  to  prevent  confusion,  to 
differentiate  them  from  the  mass  of  things  to  which  common 
Laws  speech  gives  the  name  of  law.  Such,  for  instance,  to  use 

•o^aUed.7  Blackstone's l  classification,  as  (1)  the  laws  of  inanimate  mat- 
ter; (2)  the  laws  of  animal  nutrition;  (3)  the  laws  of  nature 
which  are  rules  imposed  by  God  on  men  and  discoverable  by 
reason  alone ;  and  (4)  the  revealed  or  divine  law,  which  is  part 
of  the  law  of  nature  directly  expounded  by  God.  While  all 
such  laws  may  be  said  to  embody  "  a  rule  of  action  dictated 
by  some  superior  being,"  they  are  not  commands  in  the  only 
proper  sense  of  that  term,  they  are  not  commands  addressed  by 
a  human  superior  to  a  human  inferior.  Austin  therefore  rejects 
them  as  metaphorical  or  figurative  laws,  laws  improperly  so 
called.  Thus  the  conclusion  was  reached  that  of  true  laws 
those  only  are  the  subjects  of  jurisprudence  which  are  laws 
strictly  so  called,  or  positive  laws.  Not,  however,  until 
Holland's  Austin's  conclusions  —  weakened  and  disfigured  as  they  are 
ni?  by  a  lack  of  accurate  knowledge  of  what  the  law  then 
1880.  wag^  ^y  an  aDSOiute  ignoring  of  history,  by  entanglement 
with  irrelevant  and  to  some  extent  bad  moral  philosophy, 
and  by  a  pedantic  and  repellent  style  —  had  passed  through 
a  mental  crucible  of  the  highest  order,  could  it  be  said 

»  Comm.  1,  21. 


ANALYTICAL  AND  HISTORICAL  METHODS  11 

that  the  work  which  Hobbes  so  greatly  advanced  was  finally 
systematized  and  completed  on  a  strictly  scientific  basis. 
In  1880  Thomas  Erskine  Holland  published  his  Elements  of 
Jurisprudence,  characterized  by  an  eminent  critic  as  "the  Pollock's 
first  work  of  pure  scientific  jurisprudence  which  has  appeared  tnbute- 
in  England;  that  is,  of  the  general  science  of  law  distinctly 
seperated  from  the  ethical  part  of  politics."  *  In  Holland's 
great  work,  now  in  the  tenth  edition,  the  principles  of  the 
Analytical  School,  after  critical  reexamination,  have  been  re- 
stated under  the  three  heads  into  which  the  subject  logically 
divides  itself:  (1)  the  nature  of  sovereign  political  authority; 
(2)  the  nature  of  positive  laws  enforced  by  a  sovereign  political 
authority;  (3)  the  rules  of  human  actions,  called  laws  merely 
by  analogy,  not  so  enforced.  Every  state  is  divisible  into  two  Sovereignty 
parts,  one  of  which  is  sovereign,  the  other  subject.  The  sov-  defi 
ereignty  of  the  ruling  part  has  two  aspects.  It  is  "external," 
as  independent  of  all  control  from  without;  "internal,"  as 
paramount  over  all  action  within.  Without  external  sover- 
eignty no  state  is  qualified  for  membership  in  the  family  of 
nations.  The  questions  which  arise  with  reference  to  in- 
ternal sovereignty  relate  to  the  proportion  borne  by  the 
sovereign  part  of  the  state  to  the  subject  part.  "The  primary 
function  of  constitutional  law  is  to  ascertain  the  political 
center  of  gravity  of  any  given  state.  .  .  .  The  sovereign 
part  of  the  state,  as  thus  ascertained,  is  omnipotent.  Since 
it  is  the  source  of  all  law,  its  acts  can  never  be  illegal."  Hav-  Positive  law 
ing  thus  described  the  nature  of  sovereignty,  he  defines  a  law 
properly  so  called  to  be  "  a  general  rule  of  external  human  ac- 
tion enforced  by  a  sovereign  political  authority.  All  other 
rules  for  the  guidance  of  human  action  are  called  laws  merely 
by  analogy;  and  any  propositions  which  are  not  rules  for 
human  action  are  called  laws  by  metaphor  only."  The  rules 
for  the  guidance  of  human  action  which  are  within  the  domain 

1  Pollock,  History  oj  the  Science  of  Politics,  p.  63. 


12  THE  SCIENCE  OF  JURISPRUDENCE 

of  the  moral  sciences  and  outside  of  the  province  of  jurispru- 
dence, because  not  enforcible  by  a  sovereign  political  author- 
"  Ethic  and  ity,  he  groups  under  the  heads  "  Ethic  and  Nomology."  Ethic 
°gy'  is  the  science  of  those  rules  which  when  known  are  themselves 
adopted  by  the  will  as  its  objects  or  aims.  This  Tightness 
of  will  can  never  be  enforced  by  external  legislation.  All  that 
external  legislation  can  do  is  to  affect  the  external  expression 
of  the  will  in  act.  The  science  of  this  office  of  external  regu- 
lation is  called  "nomology,"  and  is  defined,  in  the  words  of 
Kant,  to  be  "  science  of  the  totality  of  the  laws  for  ,vhich  an 
external  legislation  is  possible."  l  This  science  of  external 
action  is  divided,  according  to  the  authority  by  which  the  rules 
of  which  it  treats  are  enforced,  into  (1)  a  science  of  rules  en- 
forced by  an  indeterminate  authority;  (2)  a  science  of  rules 
enforced  by  determinate  authority.  Under  the  first  head  are 
grouped  the  so-called  laws  of  fashion,  of  honor,  of  morality, 
and  of  nature;  under  the  second,  rules  imposed,  or  supposed 
to  be  imposed,  upon  mankind  by  God  or  Gods,  and  generally 
known  as  divine  laws. 

Historical  2.  The  Historical  Method  of  investigating  the  origin  and 
its  hand-  growth  of  law,  public  and  private,  beginning  with  its  germs 
in  primitive  society,  attempts  to  explain  its  nature  and  mean- 
ing through  the  record  of  its  development.  The  main  diffi- 
culty in  the  way  of  complete  demonstration  is  the  fragmentary 
character  of  the  evidence  as  to  the  initial  forms  of  law  in  the 
early  periods.  Only  by  a  comparison  of  such  fragments  as 
have  been  preserved  in  the  survivals  of  ancient  law  or  custom, 
in  the  usages  of  savage  tribes  and  stagnant  nations,  or  in  the 
annals  of  a  few  ancient  historians  is  it  possible  to  reconstruct 
primitive  society  as  a  complete  organism.  The  same  process 
of  thought  that  gave  birth  to  Comparative  Anatomy  and 

1  "This  definition  is  applied  by  Kant,  Rechtslehre,  p.  27,  to  the  science  of 
law.  He  opposes  'Rechtslehre'  to  'Tugendlehre,'  making  these  two  species 
exhaust  the  genus  '  Sittenlehre.' "  Holland,  Elements  of  Jurisprudence,  p.  26, 
note3. 


ANALYTICAL  AND  HISTORICAL  METHODS  13 

Comparative  Philology,  at  a  little  later  day,  brought  forth  origin  of 
Comparative  Politics  and  Comparative  Law.    To  a  student  tive  Politics 


of  Comparative  Politics  "a  political  constitution  is  a  specimen 

to  be  studied,  classified,  and  labeled,  as  a  building  or  an  animal  Law- 

is  studied,  classified,  and  labeled  by  those  to  whom  buildings 

or  animals  are  objects  of  study.    We  have  to  note  the  like- 

nesses, striking  and  unexpected  as  those  likenesses  often  are, 

between  the  political  constitutions  of  remote  times  and  places; 

and  we  have,  as  far  as  we  can,  to  classify  our  specimens  accord- 

ing to  the  probable  causes  of  those  likenesses."  *    The  name  of 

Montesquieu  is  connected  much  more  definitely  with  the  Mon- 

beginning  of  the  Historical  Method  than  that  of  Machiavelli  connection 

with  the  Analytical.    In  the  Esprit  des  Lois,  often  spoken  of  JJSoricL 

as  "one  of  the  most  important  books  ever  written,"  its  author  Method. 

made  a  new  departure  by  attempting  to  state,  even  in  a  very 

imperfect  way,  a  comparative  theory  of  politics  and  law  based 

on  wide  observations  of  the  actual  systems  of  different  lands 

and  ages.    While  his  historical  method  may  have  been  crude 

and  his  style  too  discursive;  while  he  no  doubt  failed  to  dis- 

cover that  institutions  are  an  affair  of  race  as  well  as  circum- 

stance, he  did  see  that  customs  which  appear  to  us  foolish  or 

monstrous  do  not  exist  without  any  reason  at  all,  and  that  the 

institutions  of  a  society  depend  on  its  particular  conditions, 

and  must  be  studied  in  connection  with  them.2    In  that  way 

he  aided  profoundly  in  bringing  about  the  transition  which 

has  taken  place  since  his  time  from  the  old  or  artistic  method 

of  historical  investigation  to  the  new  or  sociological.    The  Cause  of 

cause  of  the  transition  was  the  consciousness  that  the  system 

of  permanent,  uniform  and  universal  law  that  regulates  growth 

and  decay  in  the  physical  world  applies  as  well  to  the  growth 

1  Freeman,  Comparative  Politics,  p.  23.  In  that  brilliant  and  original  work 
the  name  of  the  new  science  finds  its  origin. 

8  See  Sir  Frederick  Pollock's  lecture  delivered  at  Oxford  in  1903,  and  en- 
titled "The  History  of  Comparative  Jurisprudence,"  Journal  of  the  Society 
of  Comparative  Legislation,  pp.  83-84. 


14  THE  SCIENCE  OF  JURISPRUDENCE 

and  decay  of  societies  as  to  other  phenomena.  The  French 
Revolution  gave  a  strong  impulse  to  the  new  idea,  and  the 
French  scholars,  who  were  nearest  to  the  upheaval  that  brought 
suddenly  into  view  the  underlying  social  forces  that  had  lain 
ominously  silent  during  the  dreadful  calm  of  the  latter  days 
of  the  ancien  regime,  were  the  first  to  undertake,  after  the 
peace  of  1815,  the  mighty  task  of  rewriting  the  history  of  the 
world  from  a  new  point  of  view.  Michaud,  the  Thierrys, 
Sismondi,  Michelet,  and  Guizot  led  the  way,  and  upon  their 
Auguste  heels  came  Auguste  Comte,  who  raised  himself  to  the  level  of 
Leibnitz  and  Descartes,  by  perceiving  that  social  organization 
must  be  viewed  and  explored  as  a  whole  because  of  the  con- 
nection between  each  leading  group  of  social  phenomena  and 
every  other  leading  group  so  intimate  as  to  make  a  change  in 
one  result  in  a  corresponding  modification  in  all  the  rest. 
Compara-  The  most  valuable  single  result  so  far  attained  through  the 
ami  its  best  application  of  the  Comparative  Method  to  the  study  of  po- 


litical  institutions  is  embodied  in  the  discovery  that  the  unit 
of  organization  in  all  the  Aryan  nations,  from  Ireland  to  Hin- 
dostan,  was  the  naturally  organized  association  of  kindred  — 
the  family  swelled  into  the  clan  —  which  in  a  settled  state 
assumed  the  form  of  a  village  community.  "The  7eW  of 
Athens,  the  gens  of  Rome,  the  mark  or  gemeinde  of  the  Teu- 
The  tonic  nations,  the  village  community  of  the  East,  and,  as  I  have 

community.  sa^>  *ne  Irish  clan,  are  all  essentially  the  same  thing."  *  No 
historical  jurist  claims  an  anterior  condition  to  that  in  which 
the  patriarchal  family  —  "a  group  of  men  and  women,  children 
and  slaves,  of  animate  and  inanimate  property,  all  connected 
together  by  common  subjection  to  the  paternal  power  of  the 
Unit  of  chief  of  the  household  "  —  is  the  unit  of  society.  It  seems  to  be 
beyond  question  that  a  great  part  of  the  "legal  ideas  of  civilized 
races  may  be  traced  to  this  conception,  and  that  the  history  of 
their  development  is  the  history  of  its  slow  unwinding."  2  In 

1  Comparative  Politics,  p.  102.  a  Maine,  Village  Communities,  p.  15. 


ANALYTICAL  AND  HISTORICAL  METHODS  15 

firmly  taking  hold  of  the  fact  that  the  village  community  is 
simply  the  family  swelled  into  the  clan  in  a  settled  condition,  we 
possess  ourselves  of  the  atom  or  unit  which,  in  different  forms 
and  different  combinations,  everywhere  enters  into  the  struc- 
ture of  the  state.  When  we  turn  to  the  Hellenic  world,  in  which  Hellenic 
the  science  of  politics  was  born,  we  there  find  the  dominant  form  Clty-state8- 
of  political  organization  embodied  in  the  independent  city- 
state  which  stands  toward  all  other  cities  as  a  sovereign  com- 
monwealth whose  internal  affairs  are  regulated  by  its  own 
domestic  constitution.  An  examination  of  the  internal  organi- 
zation of  such  a  community  reveals  the  fact  that  the  city-state 
is  a  composite  whole,  which  has  arisen  out  of  the  aggregation 
of  village  communities.  The  first  stage  in  the  aggregation  is 
represented  by  the  gathering  of  a  group  of  village  communities 
or  clans  (yevea)  into  a  brotherhood  ((frparpia);  the  second 
by  the  gathering  of  brotherhoods  into  a  tribe ;  the  last  by  the 
gathering  of  tribes  into  a  city.1  The  aggregate  thus  made, 
up,  the  independent  city,  embodied  the  only  practical  concep. 
tion  of  the  state  which  existed  in  the  Hellenic  world.  To 
the  Greek  mind  the  state,  the  city-commonwealth,  was  an 
organized  society  of  men  dwelling  in  K  walled  city  with  a  sur- 
rounding territory  nci  too  large  to  allow  its  free  inhabitants 
habitually  to  assemble  within  its  walls  to  discharge  the  duties 
of  citizens.2  Aristotle's  political  reflections  were  confined  Basis  of 
in  the  main  to  the  constitutions  of  Greek  states,  and  the  typi-  poifticaf 8 
cal  Greek  state  was  the  independent  city.  While  it  is  true  that  reflectlona- 
sometimes  a  Greek  city  would  be  reduced  to  a  relation  of 
bondage  to  another  city,  and  while  it  would  sometimes  con- 
federate upon  equal  or  unequal  terms  with  other  cities,  there 
was  never  any  such  thing  as  admitting  either  subjects  or  allies 
to  a  common  franchise,  there  was  never  anything  like  a  merger 

1  See  Coulanges,  The  Ancient  City  (Small's  trans.),  p.  168. 

8  Aristotle  thought  that  a  state  should  not  be  too  large  to  deny  to  its  citizens 
the  opportunity  to  become  familiar  with  each  other.  'Avayxalov  yvuplfctv 
dXXiJXoui,  iroTot  rivtt  elvi,  rods  ITO\(TOJ.  Pol.,  vii.  4.  13. 


16 


THE  SCIENCE  OF  JURISPRUDENCE 


Italian 
city-states. 


Origin  and 
growth  of 
Rome    as  a 
city-state. 


of  the  independent  city  into  a  larger  aggregation,  which  in 
any  proper  political  sense  could  be  called  a  nation.  When  we 
pass  from  the  Greek  to  the  Italian  peninsula,  we  there  find  the 
idea  of  the  independent  city-state  to  be  the  dominant  political 
idea,  and  we  also  find  the  Italian  city  to  be  the  resultant  of 
the  process  of  aggregation  in  which  the  village  community  is 
the  unit  or  starting  point.  In  Italy  the  village  community 
appears  as  the  gens.  Out  of  the  union  of  gentes  arose  the 
tribe ;  out  of  the  union  of  tribes  arose  the  city-commonwealth. 
But  the  idea  of  the  state  as  an  independent  city  was  never 
carried  out  with  the  same  completeness  in  Italy  as  in  Greece, 
for  the  reason  that  Italian  cities,  which  were  generally  smaller 
than  those  of  Greece,  manifested  a  greater  willingness  to  join 
together  in  confederations.  In  that  way  the  history  of  ancient 
Italy  is  far  more  a  history  of  confederations  than  of  single 
cities.  And  yet  it  was  upon  the  soil  of  Italy  that  a  group  of 
village  communities  grew  into  a  single  independent  city  that 
centralized  within  its  walls  the  political  power  of  the  world. 
The  way  in  which  Rome  accomplished  that  marvelous  result 
was  by  departing  from  the  exclusive  policy  of  the  Greek  cities 
and  by  extending  the  right  of  Roman  citizenship  alike  to  her 
conquered  enemies  and  to  her  faithful  allies.  The  franchise 
of  the  Roman  city  was  first  extended  to  Italy,  then  to  Gaul 
and  Spain,  and  finally  to  the  whole  Roman  world.1  In  the 
end  a  right  so  widely  bestowed  became  of  course  utterly 
worthless;  but  the  theory  upon  which  it  was  conferred  was 
never  for  a  moment  lost  sight  of.  The  freeman  who  received 
the  franchise  of  the  Roman  city  could  only  enjoy  it  within  her 
own  walls;  it  was  only  within  the  local  limits  of  the  ruling 
city  that  the  supreme  powers  of  the  state  could  be  exercised. 

1  As  to  the  edict  of  Caracalla,  extending  the  privilege  of  Roman  citizenship 
to  all  the  free  inhabitants  of  the  Empire,  see  Maine,  Ancient  Law,  p.  139 ;  Gibbon, 
Decline  and  Fall,  i.  185,  193;  Guizot,  History  of  Representative  Government, 
pp.  181,  182;  Bryce,  Studies  in  History  and  Jurisprudence,  pp.  40,  85,  585, 
758 ;  Dr.  L.  Mitteis,  Reichsrecht  und  Volksrecht  in  den  ostlichen  Provinzen  des 
Romischen  Kaiserreichs,  ch.  vi. 


ANALYTICAL  AND  HISTORICAL  METHODS  17 

And  so  whether  we  take  for  illustration  the  exclusive  Greek  Dominant 
city,  or  the  great  Latin  city  extending  its  franchise  to  all  the  jn>IancienT 
world,  the  ancient  conception  of  the  state  as  the  city-common-  world- 
wealth  stands  forth  clearly  and  distinctly  defined.     In  that 
way  jurists  of  the  historical  school  have  made  a  complete 
understanding  of  the  constitutional  and  international  law  of 
the  ancient  world  possible. 

Out  of  the  settlements  made  by  the  Teutonic  nations  upon  Modem 
the  wreck  of  the  Roman  Empire  has  gradually  arisen  the  oiTstate0 
modern  conception  of  the  state  as  a  nation  occupying  a  definite  a  natlon- 
area  of  territory  with  fixed  geographical  boundaries,  the  state 
as  known  to  modern  international  law.     In  the  Germania  of 
Tacitus  we  have  the  contemporaneous  observations  of  one  of 
the  greatest  and  most  accurate  of  historians  upon  the  social 
and  political  organization  of  the  Teutonic  race  while  yet  in  its 
childhood.     According  to  his  account  the  race  now  called 
Teutonic,  although  of  the  same  physical  type,  and  speaking 
the  same  language,  and  although  possessed  of  a  common 
mythology,  and  a  common  system  of  social,  political,  and 
military  institutions,  did  not  possess  in  its  own  tongue  a  com- 
mon name  by  which  to  describe  the  race  as  a  whole,  nor  any 
form  of  central  political  organization.1    This  homogeneous  Teutonic 
race  was  broken  up  into  an  endless  number  of  political  com-  OTganL 
munities  or  tribes  which  stood  to  each  other  in  a  state  of  com-  z&tio11- 
plete  political  isolation,  except  when  united  in  temporary 
confederacies.    The  typical  Teutonic  tribe  —  the  civitas  of 
Caesar  and  Tacitus — represented  an  aggregation  of  hundreds, 
while  the  hundred  represented  an  aggregation  of  village  com- 
munities.    The  spot  inhabited  by  the  village  community  is 
called  in  German  muniments,  the  mark,  —  an  area  of  land 
marked  out  and  defined  by  settled  boundaries.    The  internal 
affairs  of  the  mark  were  regulated  by  a  village  council  or  mark- 
moot,  in  which  every  markman  had  his  place.    The  parallel  be- 

1  Tac.,  Germania,  cc.  1-4. 


18  THE  SCIENCE  OF  JURISPRUDENCE 

Parallel        tween  the  Teutonic,  the  Greek,  and  the  Latin  tribe  seems  to  be 
Teutonic,      complete.    The  7«>o5,  the  gens,  the  mark,  represent  the  same 


tribe1  ^nS>  —  ^he  village  community;   while  the  fyparpla,  the  curia, 
the  hundred,  seem  to  represent  the  same  thing,  —  a  group  or 
union  of  village  communities.1    Out  of  the  aggregation  of  such 
intermediate  groups,  or  hundreds,  arose  the  tribe  itself.     But 
here  the  parallel  ceases.    In  the  Mediterranean  peninsulas 
in  Greece     the  resultant  of  the  union  of  tribes  was  the  city-common- 
tribes  wealth;  in  Teutonic  lands  the  resultant  of  a  union  of  tribes 


was  no*  a  c^y  a^  a^>  kut  a  nation.  In  ancient  Greece  and 
Italy  the  city  became  the  heart,  the  center  of  social  and  po- 
litical life;  while  in  countries  inhabited  by  the  Teutonic  race 
the  idea  of  the  city  never  became  dominant.  The  Teutonic 
city,  if  it  was  to  be  found  at  all,  was  simply  the  dwelling  place 
of  part  of  the  nation  who  were  in  no  wise  privileged  above 
those  who  dwelt  beyond  its  bounds.  At  the  time  Tacitus 
wrote  the  typical  Teutonic  tribe  (civitas)  was  a  distinct  com- 
monwealth, the  largest  and  highest  political  aggregate.  Not 
until  nearly  a  hundred  years  later  were  these  scattered  tribes 
in  Teutonic  gathered  into  larger  wholes  —  into  nations.2  When  that 
nations!  stage  was  reached,  when  tribes  were  fused  into  the  higher  po- 
litical unit,  —  the  nation,  —  the  primitive  Teutonic  concep- 
tion of  the  state  widened  into  its  full  and  final  development. 
But  another  stage  of  growth  had  yet  to  be  passed  before  the 
new  unit,  which  thus  arose  out  of  an  aggregation  of  tribes, 
reached  the  full  modern  conception  of  the  state  as  a  nation 
possessing  a  definite  portion  of  the  earth's  surface  with  fixed 
geographical  boundaries.  The  fact  must  be  borne  in  mind 
that  the  primary  bond  which  united  the  people  who  com- 
posed a  Teutonic  nation  was  a  personal  one,  —  the  national 
king  was  the  first  among  the  people,  the  embodiment  of  the 
national  being,  but  not  the  king  of  a  particular  area  or  region 

1  Comparative  Politics,  pp.  66-67.    2d  ed. 

8  Zeuss,  Die  Deutschen  und  die  Nachbarstamme,  pp.  303,  304. 


ANALYTICAL  AND  HISTORICAL  METHODS  19 

of  territory.  The  idea  of  sovereignty  was  not  associated  in  Tribal 
the  Teutonic  mind  with  dominion  over  a  particular  portion 
or  subdivision  of  the  earth's  surface.  The  Merovingian  line 
of  chieftains  were  not  kings  of  France,  they  were  kings  of  the 
Franks;  Alaric  was  king  of  the  Goths  wherever  the  Goths 
happened  to  be,  whether  upon  the  banks  of  the  Tiber,  the 
Tagus,  or  the  Danube.1  The  leading  idea  which  seems  to  have 
prevailed  among  the  conquering  nations  that  settled  down 
upon  the  wreck  of  Rome  was  that  they  were  simply  encamped 
upon  the  land  whose  possession  they  had  won.  The  concep- 
tion of  sovereignty  which  the  Teutons  brought  with  them 
from  the  forest  and  the  steppe  was  distinctly  tribal  or  national 
and  not  territorial.  The  general  nature  of  the  transition  Transition 
whereby  the  primitive  notion  of  tribal  sovereignty  was  gradu-  through  feu- 
ally  superseded  by  that  of  territorial  sovereignty  has  been  de-  daUzati<m- 
scribed  as  a  movement  from  personal  to  territorial  organiza- 
tion ; 2  from  a  state  of  things  in  which  personal  freedom  and 
political  rights  were  the  dominant  ideas  to  a  state  of  things  in 
which  those  ideas  have  become  bound  up  with  and  subservient 
to  the  possession  of  land.3  The  most  striking  single  result 
of  the  transition  —  which,  for  the  want  of  a  better  term,  has 
been  called  "the  process  of  feudalization "  —  is  that  the  elec- 
tive chief  of  the  nation,  the  primitive  embodiment  of  the  tribal 
sovereignty,  is  gradually  transformed  into  the  hereditary  lord 
of  a  given  area  of  land.  The  new  conception  of  sovereignty, 
which  thus  grew  out  of  "the  process  of  feudalization,"  did  not 
become  established,  however,  until  after  the  breaking  up  of 
the  empire  of  Charles  the  Great,  out  of  whose  fragments 
have  arisen  most  of  the  states  of  modern  Europe.  The  com-  completion 
pletion  of  the  transition  is  marked  by  the  accession  of  the  Ca- 
petian  dynasty  in  France.  When  the  hundred  years'  struggle 
between  the  Dukes  of  Paris  and  the  descendants  of  Charles  France. 

1  Maine,  Ancient  Law,  p.  100 ;  Freeman,  Norman  Conquest,  i.  53. 
8  Palgrave,  English  Commonwealth,  pt.  i.,  p.  62. 
*  Stubbs,  Constitutional  History,  i.  166. 


20  THE  SCIENCE  OF  JURISPRUDENCE 

the  Great  ended  in  the  triumph  of  Hugh  Capet,  he  not  only 
assumed  the  dynastic  title  of  King  of  the  French,  but  he  also 
styled  himself  King  of  France.1    Hugh  Capet  and  his  descend- 
ants were  kings  in  the  new  territorial  sense;  they  were  kings 
who  stood  in  the  same  relation  to  the  land  over  which  they 
ruled  as  the  baron  to  his  estate,  the  tenant  to  his  freehold. 
The  form  thus  assumed  by  the  monarchy  in  France  was  re- 
Basis  of        produced  in  each  subsequent  dominion  established  or  con- 
state ays-  . 
tem  of          sohdated;   and  thus  has  arisen  the  state  system  of  modern 

Europe.        Europe,  in  which  the  idea  of  territorial  sovereignty  is  the 

basis  of  all  international  relations. 

Sovereignty      Such  was  the  historical  evolution  and  such  the  nature  of  the 

by  Bodin,      typical  European  state  to  whose  analysis  Bodin  devoted  him- 

Austin.>aE     se^  m  the  sixteenth  century,  when,  at  the  earliest  possible 

moment  perhaps,  he  denned  its  cardinal  attribute,  —  political 

sovereignty  over  a  definite  area  of  territory,  a  sovereignty 

"supreme  over  citizens  and  subjects,  itself  not  bound  by  the 

laws."    An  account  has  been  given  already  of  the  process 

through  which  the  modern  theory  of  the  state  thus  propounded 

by  Bodin  was  amplified  and  refined  first  by  Hobbes  and  then 

by  Austin,  who  declared  that  positive  law  must  be  a  command, 

armed  with  a  definite  sanction,  and  issuing  from  a  determinate 

Austin's       authority.2    A   notable   criticism   of   Austin's   definition   of 

definition 

criticised  by  sovereignty  has  been  made  by  Sir  Henry  Maine,  who  claims 
that  there  are  countries  where  the  sovereign  authority  cannot 
by  any  stretch  of  language  be  said  to  command  the  laws,  and 
yet  where  laws  manifestly  exist.  "My  instance,"  says  Sir 
Henry,  "  is  the  Indian  province  called  the  Punjaub,  the  Coun- 

1  Ancient  Law,  p.   104.     Freeman  was  once  inclined  to  challenge  Maine's 
statement,  but  he  afterwards  wrote  me:    "I  should  not  say  that  what  Maine 
says  about  Rex  Francorum  and  Rex  Franciae  was  other  than  right  in  a  general 
way.     Those  things  came  in  gradually.     Roi  de  France  comes  in  pretty  early  — 
as  early  as  Wace.     I  doubt  whether  Rex  Franciae  is  ever  used,  till  Henry  IV. 's 
Rex  Franciae  et  Navarre,  as  a  formal  Latin  title. "     See  also  Norman  Conquest, 
vol.  i.,  Appendix,  note  M,  p.  395. 

2  See  above,  pp.  9,  10. 


ANALYTICAL  AND  HISTORICAL  METHODS  21 

try  of  the  Five  Rivers,  in  the  state  in  which  it  was  for  about 
a  quarter  of  a  century  before  its  annexation  to  the  British 
Indian  Empire.  After  passing  through  every  conceivable 
phase  of  anarchy  and  dormant  anarchy,  it  fell  under  the  toler- 
ably consolidated  dominion  of  a  half-military,  half-religious 
oligarchy  known  as  the  Sikhs.  The  Sikhs  themselves  were 
afterward  reduced  to  subjection  by  a  single  chief  belonging 
to  their  order,  Runjeet  Singh.  At  first  sight  there  could  be 
no  more  perfect  embodiment  than  Runjeet  Singh  of  sovereignty 
as  conceived  by  Austin.  He  was  absolutely  despotic.  Ex- 
cept occasionally  on  his  wild  frontier  he  kept  the  most  perfect 
order.  He  could  have  commanded  anything.  The  smallest 
disobedience  to  his  commands  would  have  been  followed  by 
death  or  mutilation ;  and  this  was  perfectly  well  known  to  the 
enormous  majority  of  his  subjects.  Yet  I  doubt  whether 
once  in  all  his  life  he  issued  a  command  which  Austin  would 
call  a  law.  He  took  as  his  revenue  a  prodigious  share  of  the 
produce  of  the  soil.  He  harried  villages  which  recalcitrated 
at  his  exactions,  and  he  executed  great  numbers  of  men. 
He  levied  great  armies ;  he  had  all  material  power,  and  he  exer- 
cised it  in  various  ways.  But  he  never  made  a  law.  The  rules 
which  regulated  the  lives  of  his  subjects  were  derived  from 
their  immemorial  usages,  and  those  rules  were  administered 
by  domestic  tribunals  in  families  or  village  communities; 
that  is,  in  groups  no  larger  or  little  larger  than  those  to  which 
the  application  of  Austin's  principles  cannot  be  effected  on  his 
own  admission  without  absurdity."  1  The  recognized  Eng-  Weak  point 
lish  leader  of  the  Historical  School  in  this  sharp  assault  upon 
a  basic  principle  as  defined  by  one  of  the  foremost  exponents 
of  the  Analytical  loses  sight  of  the  fact  that  the  mere  size  of 
the  separate  communities  would  make  no  sort  of  difference 
to  the  theory  of  Austin,  who  would  no  doubt  have  regarded  the 
empire  of  Runjeet  Singh  as  divided  into  small  districts,  the 

1  Early  History  of  Institutions,  p.  380. 


22  THE  SCIENCE  OF  JURISPRUDENCE 

headman  or  council  in  each  taking  his  orders  from  Runjeet 
Singh,  and  enforcing  them,  each  in  his  own  sphere,  relying  in 
the  last  resort  on  the  force  at  the  disposal  of  the  suzerain. 
As  Austin's  definition  has  nothing  to  do  with  the  historical 
origin  of  laws,  it  is  a  matter  of  no  importance  that  what  he 
calls  a  "command"  is  not  a  law  or  rule  which  the  sovereign 
has  announced  in  the  first  instance.  As  many  laws  are  based 
upon  immemorial  practices,  or  have  their  source  in  the  writ- 
ings of  jurisconsults,  they  are  not  traceable  to  the  sovereign 
at  all  in  the  sense  of  commands  issued  by  him.  Austin's 
definition  looks  not  to  the  authorship  of  the  law  as  a  principle, 
but  to  the  person  or  persons  who  in  the  last  resort  cause  it  to 
be  obeyed.  When  in  any  given  case  rules  are  habitually 
enforced  by  physical  penalties,  administered  by  a  determinate 
person  or  portion  of  the  community,  they  should  be  regarded 
as  positive  laws,  and  as  such  within  the  province  of  jurispru- 
Hoiiand's  dcnce.  Holland  has  clearly  summed  up  the  whole  matter 
?'  in  the  statement  that  "disobedience  to  the  village  custom 
or  the  provincial  law  may  either  be  forcibly  repressed,  or  it 
may  be  acquiesced  in,  by  the  local  authority.  If  it  be  habit- 
ually repressed  by  such  local  force  as  may  be  necessary,  it 
follows  that  the  local  force  must,  if  only  for  the  preservation 
of  the  peace,  be  supported,  in  the  last  resort,  by  the  whole 
strength  of  the  empire.  In  this  case  the  humblest  village  cus- 
tom is  a  law  which  complies  with  the  requirement  of  being 
enforced  by  the  sovereign."  *  With  Maine's  objection  to  the 
inadequacy  of  Austin's  definition  of  sovereignty  explained 
away,  it  cannot  be  said  that  there  remains  any  real  difference 
of  view  between  the  Analytical  and  Historical  schools  either 
as  to  the  nature  of  political  sovereignty  or  as  to  its  enforcement 
through  positive  law.  When  the  best  fruits  of  the  two  methods 
are  thus  placed  in  juxtaposition,  who  can  fail  to  perceive  how 
they  illustrate  and  sustain  each  other? 

1  Holland,  Elements  of  Jurisprudence,  p.  51. 


ANALYTICAL  AND  HISTORICAL  METHODS  23 

While  that  branch  of  Sociology  which  treats  of  prehistoric  Compara- 
political  institutions  has  engaged  a  much  larger  share  of  atten-  and  its  best 
tion  than  the  history  of  laws,  the  fact  remains  that  the  efforts  fnute' 
in  that  direction  of  two  epoch-making  men,  the  one  German, 
the  other  English,  have  resulted  in  the  creation  of  what  may 
be  called  the  natural  history  of  law.    The  greatest  master  of 
legal  history  in  the  last  century  was  Friedrich  Carl  von  Savigny  Savigny 
(1779-1861),  the  founder  or  consolidator  of  the  Historical  isei). 
School  of  Jurisprudence,  who  applied  that  method  only  in  a 
very  limited  way  to  the  general  theory  of  politics.    When,  in 
1803,  he  published  his -Das  Recht  des  Besitzes,  or  the  right  of 
possession,  jurists  perceived  that  the  old  uncritical  study  of 
Roman  law  was  at  an  end.    Austin  pronounced  it  to  be  "  of  all 
books  upon  law,  the  most  consummate  and  masterly."    Thus 
from  a  new  fountain  came  a  stream  of  legal  literature  which 
has  not  yet  ceased  to  flow.     Ihering  says,  "With  the  Recht 
des  Besitzes  was  the  juridical  method  of  the  Romans  regained, 
and  modern  jurisprudence  born."    In  1814  appeared  Savigny 's 
pamphlet  Vom  Berufunserer  Zeitfur  Gezetzgebung  und  Rechts- 
wissenschqft,  in  which  he  expressed  the  then  new  idea  that  law 
is  a  part  and  parcel  of  national  life.     "I  regard,"  he  said, 
"  the  law  of  each  country  as  a  member  of  its  body,  not  as  a 
garment  merely  which  has  been  made  to  please  the  fancy,  and 
can  be  taken  off  at  pleasure  and  exchanged  for  another." 
Instead  of  regarding  law  as  a  creation  of  the  will  of  individ- 
uals, Savigny  maintained  it  to  be  the  natural  outcome  of  the 
consciousness  of  the  people,  like  their  social  history  or  their  Law  as  the 
language.1    "As  in  the  life  of  individual  men  no  moment  of  national 
complete  stillness  is  experienced,  but  a  constant  organic  de- 
velopment, such  also  is  the  case  in  the  life  of  nations,  and  in 

1  "In  no  conceivable  condition  of  mankind  could  it  [law]  ever  have  stood 
alone.  It  is  peculiarly  the  product  of  every  social  force  existing  at  any  mo- 
ment in  the  community ;  it  reacts  back  upon  the  social  forces  as  being  in  itself 
the  most  potent  force  of  all."  Amos,  A  Systematic  View  of  the  Science  of 
Jurisprudence,  p.  18. 


conscious- 
ness. 


24  THE  SCIENCE  OF  JURISPRUDENCE 

every  individual  element  in  which  this  collective  life  consists ; 
so  we  find  in  language  a  constant  formation  and  develop- 
ment, and  in  the  same  way  in  law."  *  He  was  thus  among  the 
first  to  perceive  what  everybody  now  understands,  —  institu- 
tions are  not  made,  they  grow.  In  1815  appeared  the  first 
volume  of  his  Geschichte  des  romischen  Rechts  im  Mittelalter, 
the  last  volume  of  which  did  not  appear  until  1831.2  That 
famous  work  embodies  an  emphatic  protest  against  the  habit 
of  viewing  the  law  of  a  nation  as  an  arbitrary  creation,  not 
connected  with  its  history  and  condition.  And  here  the  fact 
should  be  emphasized  that  the  work  of  Savigny,  as  well  as 
with  Roman  that  of  his  immediate  followers,  dealt  only  with  Roman  mate- 
matenais.  rjais>  Comparative  investigation  of  archaic  legal  systems 
had  scarcely  been  undertaken  at  all,  certainly  not  on  any  con- 
siderable scale.  The  almost  unbroken  soil  of  that  rich  and 
inviting  field  was  destined  to  be  turned  over  by  the  plow  of 
Maine  one  who  revealed  wonders.  Sir  Henry  Sumner  Maine  (1822- 
1888)7  1888),  whose  Ancient  Law  appeared  in  1861,  said  in  his 
preface  that  "the  chief  object  of  the  following  pages  is  to 
indicate  some  of  the  earliest  ideas  of  mankind,  as  they  are 
reflected  in  Ancient  Law,  and  to  point  out  the  relation  of  those 
ideas  to  modern  thought."  No  more  modest  announcement 
was  ever  made  of  something  which  proved  to  be  almost  a  reve- 
lation, only  supplemented  and  confirmed  by  subsequent  re- 
Scopeof  search.  To  use  the  words  of  his  successor  at  Oxford:  "He 
work°nginal  showed,  on  the  one  hand,  that  legal  ideas  and  institutions  have 
a  real  course  of  development  as  much  as  the  genera  and  species 
of  living  creatures,  and  in  every  stage  of  that  development 
have  their  normal  characters ;  on  the  other  hand,  he  made  it 
clear  that  these  processes  deserve  and  require  distinct  study, 
and  cannot  be  treated  as  mere  incidents  in  the  general  history 

1  See  Introduction  to  the  History  of  Jurisprudence,  by  D.  Caulfield  Heron, 
London, 1880. 

3  System  des  heutigen  rSmischen  Rechts  (8  vols.,  1840—49)  ;  Das  Obligationen- 
recht  (2  vols.,  1851-53). 


ANALYTICAL  AND  HISTORICAL  METHODS  25 

of  the  societies  where  they  occur.  .  .  .  Nowadays  it  may  be 
said  that  'all  have  got  the  seed/  but  this  is  no  justification  for 
forgetting  who  first  cleared  and  sowed  the  ground."  *  As 
Maine  himself  tells  us  in  his  first  preface,  the  portions  dealing 
with  Roman  law  were  never  intended  to  take  the  place  of  an 
academic  treatise  on  that  subject.  He  only  looked  to  that 
prolific  source  for  illustrations  of  his  general  theory  vitalized 
throughout  by  the  true  spirit  of  philosophy,  and  founded  on 
facts  derived  from  the  most  patient  and  thorough  historical 
investigation.  While  the  views  of  Rudolf  von  Ihering  (1818-  ihenng 

(1818— 

1892),  a  man  of  genius,  coincide  in  several  particulars,  in  a  i892). 
remarkable  way,  with  those  of  Maine  as  to  the  evolution  of 
modern  from  archaic  law,  there  can  be  no  question  of  borrow- 
ing either  way,  as  Maine's  theories  were  developed  before 
Ihering's  great  work,  Der  Geist  des  romischen  Rechtes,2  ap- 
peared, and  as  Ihering,  who  could  not  read  English  with  any 
facility,3  was  never  in  a  position  to  make  use  of  Maine's  work. 
In  the  construction  of  his  remarkable  chapter  on  "Ancient 
Codes"  Maine  was  deprived  of  the  light  to  be  drawn  from  the 
now  famous  Code  of  Hammurabi,  unearthed  since  his  death,  code  of 
by  M.  de  Morgan  on  the  acropolis  of  Susa,  the  ancient  capital 
of  Elam  in  Persia,  which  reveals  so  clearly  the  state  of  society 
four  thousand  years  ago.  Hammurabi,  commonly  identified 
with  the  Amraphel  of  Genesis  xiv.  1,  was  the  first  ruler  over 
the  whole  of  Babylonia  who  united  all  of  lower  Chaldea  under 
one  rule  and  founded  a  great  empire  that  lasted  about  two 
thousand  years.  The  laws  of  Hammurabi,  recognized  as  a 
codification  of  decisions  given  in  the  civil  courts  and  adapted  to 
general  use  in  Babylonia,  were  doubtless  observed  throughout 
the  empire,  even  as  far  as  Palestine,  for  centuries  before  Moses 

1  Sir  Frederick  Pollock,  Introduction  and  Notes  to  Maine's  "Ancient  Law," 
pp.  viii,  ix.  London,  1906. 

3  There  is  a  French  translation,  Esprit  du  Droit  Roman,  by  O.  Meulenaere, 
revised  by  the  author,  in  4  vols.  Paris,  1877-1878. 

3  Sir  Frederick  tells  us  that  he  learned  that  fact  from  Ihering  himself.  Op.  cit.,  x. 


26 


THE  SCIENCE  OF  JURISPRUDENCE 


Papyrus 
leaves  found 
in  convent 
on  Mount 
Sinai. 


Dareste. 


Coulanges. 


Freeman, 
Pollock, 
and  Bryce. 


entered  the  Holy  Land,  and  continued  in  force  until  the  Greek 
conquest  under  Alexander.1  It  is  hard  to  speak  of  the  recent 
discovery  of  an  ancient  code  without  reference  to  the  bundle 
of  papyrus  leaves  found  by  Dr.  Bernardakis  in  the  convent  on 
Mount  Sinai,  containing  parts  of  a  commentary  on  UlpianiLs  ad 
Sabinum,  written  after  the  Theodosian  Code  but  before  that  of 
Justinian,  and  therefore  between  439  and  529. 2  A  transcript 
of  the  originals  was  forwarded  by  the  finder  to  Rodolphe 
Dareste,  by  whom  they  were  published  at  Paris  in  1880. 
M.  Dareste,  a  counselor  of  the  Court  of  Cassation,  widened  his 
reputation  by  the  publication  of  his  Etudes  d'Histoire  du 
Droit  in  1889;  in  1893  he  made  an  invaluable  contribution 
to  an  important  and  neglected  subject  through  La  Science 
du  Droit  en  Grece;  and  in  1902  appeared  his  Nouvelles  Etudes 
d'Histoire  du  Droit.  Here  tribute  should  be  paid  to  the 
world-famous  work  of  Fustel  de  Coulanges,  La  Cite  Antique, 
etude  sur  le  culte,  le  droit,  les  institutions  de  la  Grece  et  de  Rome, 
so  justly  crowned  by  the  French  Academy.  It  is  scarcely 
necessary  to  add  that  the  varied  and  extensive  contributions 
made  during  recent  years  to  Comparative  Politics  and  Com- 
parative Law  by  Edward  A.  Freeman,  Sir  Frederick  Pollock, 
and  the  Rt.  Hon.  James  Bryce  have  never  been  surpassed 
either  as  to  exhaustive  research,  acute  criticism,  or  weightiness 
of  philosophical  reflection.  Mr.  Freeman  invented  the  phrase 
"  Comparative  Politics  "  in  his  brilliant  work  which  bears  that 
title;  Sir  Frederick  Pollock  has  condensed  into  his  History 
of  the  Science  of  Politics  as  much  as  could  possibly  have  been 
said  within  such  narrow  limits ;  while  Mr.  Bryce,  in  his  Studies 
in  History  and  Jurisprudence,  has  opened  up  a  quarry  in  which 

1  Cf.  V.  Scheil,  Delegation  en  Perse.  Memoires  publics  sous  la  direction  de 
Morgan,  dellgue  general,  tome  iv.,  Textes  Elamites-Semitiques,  Paris,  1902 ; 
Hugo  Winckler,  Die  Gesetze  Hammurabi,  Konig  von  Babylon,  Leipzig,  1903,  3d 
ed. ;  The  Oldest  Code  of  Laws  in  the  World,  trans,  by  C.  H.  W.  Johns,  Edinburgh, 
1903 ;  The  Code  of  Hammurabi,  King  of  Babylon,  about  2250  B.C.,  edited  by 
Robert  Francis  Harper,  Chicago,  1904. 

3  Between  440-450  A.D.,  says  Baron.     See  Centralblatt,  vii.  58. 


ANALYTICAL  AND  HISTORICAL  METHODS  27 

students  of  government  and  law  may  work  for  all  time.  The 
strongest  part,  perhaps,  of  that  remarkable  production  is  the 
far-reaching  comparison,  worked  out  in  great  detail,  between 
Roman  and  English  law,  considered  as  systems  which  have 
been  extended  over  vast  areas  of  foreign  territory  preoccupied 
by  widely  divergent  codes  of  native  law.  Honorable  mention 
of  an  humbler  kind  is  due  to  the  translation  made  in  1897,  by 
Mr.  J.  H.  Gubbins,  Second  Secretary  of  the  British  Legation 
in  Japan,  of  the  Civil  Code  of  Japan,  passed  by  the  Diet  in 
March,  1896. 


CHAPTER  II 

JURISPRUDENCE   AND  ITS   PROVINCE   DEFINED 

Junspru-          1.  The  way  has  now  been  cleared  for  the  following  ques- 
0f  °  tions:   (1)  what  is  the  subject-matter  of  the  Science  of  Juris- 


pmciencej  (2)  for  what  purpose  does  it  exist;  (3)  what  is 
the  nature  of  the  processes  through  which  it  works  out  its 
results?  In  the  preceding  chapter  a  deliberate  effort  was 
made  carefully  to  define  the  nature  of  positive  law,  for  the 
reason  that  it  is  the  sole  and  only  subject-matter  to  which  the 
science  in  question  relates.  The  Science  of  Jurisprudence 
is  the  science  of  positive  law,  and  its  function  is  to  extract 
from  the  mass  of  details,  embodied  in  the  several  systems  of 
positive  law  enforced  by  the  political  sovereignties  composing 
the  family  of  nations,  the  comparatively  few  and  simple  basic 
legal  conceptions  that  underlie  the  infinite  variety  of  legal 
Austin's  rules.  As  Austin  has  well  expressed  it  :  "The  proper  subject 
of  general  or  universal  Jurisprudence  is  a  description  of  such 
subjects  and  ends  of  laws  as  are  common  to  all  systems,  and 
of  those  resemblances  between  different  systems  which  are 
bottomed  in  the  common  nature  of  man,  or  correspond  to  the 
resembling  points  in  these  several  portions."  *  Wide  apart 
as  were  Austin  and  Savigny,  the  statement  of  the  former  is 
only  comprehensible  in  the  light  of  the  revelations  as  to  the 

1  Lectures  on  Jurisprudence,  iii.  356.  "Government,  marriage,  ownership, 
contract,  intestate  and  testamentary  succession,  crime,  death,  birth,  fraud, 
malice,  and  accident  are  facts  of  human  society  which  eternally  accompany  it 
from  its  birth  to  its  dissolution.  Law  itself  is  only  one  of  these  facts  ;  the  neces- 
sary effect  of  which  upon  all  the  rest,  and  of  the  rest  upon  it,  it  has  been  seen 
to  be  the  peculiar  province  of  the  jurist  to  watch  and  to  describe."  Amos,  A 
Systematic  View  of  the  Science  of  Jurisprudence,  p.  501. 

28 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      29 

real  nature  of  law  made  by  the  latter,  who  developed  the  His- 
torical Method  into  a  universal  philosophy  of  law,  covering  the 
ground  which  should  be  separately  assigned  to  the  Science  of 
Jurisprudence,  and  the  theories  of  legislation.  In  Savigny's 
system  there  is  not  the  faintest  approach  to  the  Austinian  anal- 
ysis. The  scope  of  it  is  not  the  analysis  of  law  as  a  command, 
but  that  of  a  Rechtsverhdltniss,  or  legal  relation.  Savigny 
gave  expression  to  a  path-breaking  idea  (bahribreckende  Of  iaw!° 
Idee),  unfamiliar  before  his  time,  when  in  his  Beruf  unserer 
Zeit,  which  appeared  in  1814,  he  said  that  law  is  a  part  and 
parcel  of  the  life  of  a  nation,  "not  a  garment  merely  which  has 
been  made  to  please  the  fancy  and  can  be  taken  off  at  pleasure 
and  exchanged  for  another."  Instead  of  considering  law  as 
the  creation  of  the  will  of  individuals,  he  regarded  it  as  the 
natural  outcome  of  the  consciousness  of  the  people,  like  their 
social  habits  or  their  language.  To  use  his  own  words:  Das 
Gesetz  ist  das  Organ  des  Volksrechts  (the  people  is  always  the 
true  legislator).  Thus  the  Historical  School  of  Jurisprudence, 
speaking  through  Savigny,  has  given  to  the  world  the  true  con- 
ception of  law  which  is  rapidly  becoming  dominant,  if  not  so 
already.  Jurists  are  beginning  to  understand  that  "the 
matter  of  legal  science  is  not  an  ideal  result  of  ethical  or  po- 
litical analysis;  it  is  the  actual  result  of  the  facts  of  human 
nature  and  history."  l  Or  as  Bryce  has  recently  expressed  it :  Bryce's 
"Although  law  may  not  have  been  created  by  the  state,  it 
tends  as  it  grows  to  become  more  and  more  closely  associated 
with  the  state  as  a  function  of  the  latter's  energy.  Though 
its  leading  doctrines  and  its  fundamental  institutions  are  in 
some  respects  essentially  the  same  in  all  civilized  communities, 
still  every  given  system  is,  in  the  historian's  view,  forever 
changing,  growing,  and  decaying,  both  in  its  theory  and  in  its 
substance,  ...  It  (the  Historical  Method)  conceives  of 
national  character  and  the  circumstances  of  national  growth 

1  Pollock  and  Maitland,  History  of  English  Law,  Introd.,  p.  xxiii.     2d  ed. 


30 


THE  SCIENCE  OF  JURISPRUDENCE 


Teaching 
of  the 
Boston  law 
school. 


Law  is  a 
living  and 
growing 
organism 
which 
changes  as 
the  relations 
of  society 
change. 


Processes 
of  Juris- 
prudence. 


as  creative  forces,  whereof  law  is  the  efflux  and  expression, 
being  itself  a  living  organism,  which  in  its  turn  helps  to  shape 
the  mind  of  the  people.  Accordingly  it  shows  that  each  na- 
tion, rather  than  individual  men,  however  potent,  is,  through 
what  the  Germans  call  its  legal  consciousness  (Rechtsbewusst- 
seiri),  the  maker  and  molder  of  its  laws." l  In  harmony 
with  such  ideas  the  School  of  Law  of  Boston  University  now 
bases  its  teachings  largely  on  the  contention  that  law  is 
neither  the  command  of  an  outside  sovereign,  nor  a  collection 
of  abstract  principles  in  force  by  the  nature  of  things  for  all 
ages,  but  the  expression  for  the  time  being  of  the  dominant 
force  of  the  community;  that  legal  right  broadly  is  what  the 
dominant  force  in  society,  deflected  more  or  less  by  opposition, 
requires  or  authorizes;  in  other  words,  what  it  wills.2  Thus 
the  Historical  School  has  established  the  momentous  conclu- 
sion that  law,  in  its  final  analysis,  is  neither  the  command  of  an 
outside  sovereign,  nor  a  collection  of  abstract  principles  in 
force  by  the  nature  of  things  for  all  ages.  Law  is  a  living  and 
growing  organism  which  changes  as  the  relations  of  society 
change.3  It  thus  becomes  the  province  of  the  Science  of  Juris- 
prudence, or  as  it  may  be  called  for  convenience  Jurisprudence, 
to  look  behind  the  law  into  those  relations  of  mankind  which 
are  generally  recognized  as  having  legal  consequences,  in  order 
to  ascertain  whether  or  no  there  is  unity  or  even  resemblance 
in  the  basic  conceptions  that  underlie  them. 

2.  Having  now  defined  the  subject-matter  of  Jurisprudence 
and  the  purpose  for  which  the  science  exists,  the  more  difficult 
task  remains  to  indicate  the  nature  of  the  processes  through 

1  Studies  in  History  and  Jurisprudence,  pp.  617-618. 

3  See  Introduction  by  M.  M.  Bigelow  to  "Centralization  and  the  Law,"  Scien- 
tific Legal  Education.  Boston,  1906. 

*"The  law  is  always  approaching,  and  never  reaching  consistency.  It  is 
forever  adopting  new  principles  from  life  at  one  end,  and  it  always  retains  old 
ones  from  history  at  the  other,  which  have  not  been  absorbed  or  sloughed  off. 
It  will  become  entirely  consistent  only  when  it  ceases  to  grow."  Mr.  Justice 
Holmes,  The  Common  Law,  p.  36. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      31 

which  it  works  out  its  results.  If,  as  an  imperfect  illustration, 
a  state  may  be  compared  to  a  watch,  its  case  or  outer  shell 
represents  the  state's  political  constitution,  while  its  inner 
mechanism  represents  the  interior  code  which  defines  the 
rights  of  persons,  public  and  private,  and  indicates  the  pro- 
cedure by  which  they  are  enforced.  The  primary  purpose  of  Compara- 
that  branch  of  the  Historical  Method  known  as  Comparative 
Politics  is  to  classify  and  label  the  outer  shells  of  states  as 
represented  by  their  political  constitutions;  the  primary 
purpose  of  that  branch  of  the  same  method  known  as  Com- 
parative Law  is  to  classify  and  label  the  interior  codes  under 
which  rights  recognized  by  law  are  enforced  by  state  authority. 
Lord  Bacon  states  the  distinction  in  a  general  way  when  he 
says,  "  I  consider  that  it  is  a  true  and  received  division  of  the 
law  into  jus  publicum  and  jus  privatum,  the  one  being  the  sinews 
of  property,  and  the  other  of  government."  l  No  matter 
whether  we  look  to  the  ancient  or  modern  world  it  appears  Compar- 
that  Comparative  Law  has  ever  been  the  subsidiary  science  subsidiary 
which  collects  the  data  to  which  the  Science  of  Jurisprudence 
has  been  and  must  be  applied.  Through  the  marvelous  dis- 
coveries  made  during  the  last  century  by  the  masters 
of  the  science  of  language  a  great  flood  of  light  has  been 
shed  upon  the  earliest  forms  of  social  organization  that 
existed  in  those  nations  with  whose  history  we  are  at  all  con- 
cerned. Through  the  labors  of  the  comparative  philologists, 
not  only  has  the  original  unity  of  the  Aryan  race  been  clearly 
established,  but  its  prehistoric  language  has  also  been  so  far 
reconstructed  as  distinctly  to  indicate  the  stage  of  civilization 
attained  by  it  before  the  departure  from  the  common  Aryan 
home.  In  the  words  of  Peschel,  "When  the  ancient  vocabu- 
lary of  the  primordial  Aryan  age  is  restored  by  collecting  the 
roots  common  to  all  the  members,  we  at  the  same  time  obtain 
an  outline  of  the  social  condition  of  these  nations  in  the  most 

1  Preparation  toward  the  "Union  of  Laws,"  Works,  vii.  731. 


32  THE  SCIENCE  OF  JURISPRUDENCE 

ancient  period."  *  This  great  revelation,  which  in  the  his- 
tory of  the  intellect  has  been  called  "the  discovery  of  a  new 
world,"  2  has  been  brought  about  by  the  application  of  the 
Comparative  Method  to  the  study  of  language  whereby  the 
roots  common  to  a  large  group  of  kindred  tongues  have  been 
traced  back  to  a  common  source.  But  the  Comparative 
Method  has  not  been  confined  to  the  study  of  language  only; 
Application  it  has  found  a  new  and  a  broad  field  for  its  operation  in  its 
t/ve°Me^od  application  to  the  comparative  study  of  political  institutions 
to  language,  g^  Of  cofes  of  iaws>  Thus  alongside  of  the  Science  of  Com- 
parative Philology  two  new  sciences  have  lately  sprung  into 
existence  which  have  been  styled  Comparative  Politics  and 
Comparative  Law.  It  has  been  well  said  that  as  abstract 
grammar  is  the  outcome  of  generalizations  upon  facts  repre- 
senting similarities  and  differences  in  the  growth  of  different 
languages,  as  collected  and  arranged  by  Comparative  Philology, 
so  Jurisprudence  is  the  outcome  of  generalizations  upon  facts 
representing  similarities  and  differences  in  the  legal  institu- 
tions of  various  countries  as  collected  and  tabulated  by  Com- 
parative  Law.3  Not  until  after  that  collecting  agency  has 


analytical  gathered  the  materials  can  Jurisprudence,  as  an  analytical 
and  applied  an(j  app}jecj  science,  formulate  an  orderly  scheme  of  the  pur- 
poses, methods,  and  ideas  common  to  every  system  of  positive 
law.  The  attempt  will  be  made  to  demonstrate  that  while, 
as  Holland  contends,  "  a  system  of  Jurisprudence  might  con- 
ceivably be  constructed  from  the  observation  of  one  system 
of  law  only,  at  one  epoch  of  its  growth,"  as  a  matter  of  fact, 
such  has  not  been  the  method  of  its  historical  evolution.  As 
the  science  of  positive  law  is  a  Roman  creation,4  Jurisprudence 

1  The  Races  of  Man  and  their  Geographical  Distribution,  p.  8. 

*  See  Max  Miiller's  comments  upon  the  work  of  Frederick  Schlegel  in  Science 
of  Language,  p.  165. 

*  Holland,    Elements   of  Jurisprudence,   p.    8.     Despite   Pollock's   criticism 
{Essays  in  Jurisprudence  and  Ethics,  p.  4),  Holland's  illustration  is  perhaps  on 
the  whole  the  best  possible. 

4  Such  is  Maine's  declaration.    Ancient  Law,  p.  343.     "  Long  before  the  year 
300,  Jurisprudence,  the  one  science  of  the  Romans,  was  stricken  with  sterility  ;  it 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      33 

a  Roman  invention,  we  must,  according  to  the  Historical 
Method,  begin  with  an  examination  of  the  actual  conditions 
at  Rome  out  of  which  the  science  in  question  arose,  in  order  to 
illustrate  by  the  facts  of  history  the  nature  of  the  processes 
through  which  it  works  out  its  results. 

3.     It  was  a  fundamental  principle  of  the  ancient  city-state  Making  of 
that  its  law  was  the  exclusive  possession  of  its  citizens  in  which  ^  gentium 
a  foreigner  had  no  right  whatever  to  participate.     At  Rome 
that  body  of  indigenous  and  exclusive  law,  known  as  the 
jus  civile,  was  administered  by  the  praetor  urbanus  only  be- 
tween Roman  and  Roman.     Perhaps  no  other  kind  of  law 
would  ever  have  been  necessary  had  it  not  been  for  the  pe- 
culiar situation  of  a  city  which  soon  made  it  one  of  the  great 
emporiums  of  the  Mediterranean  world.    Camillus  is  reported 
to  have  said  that  "not  without  reason  did  the  gods  and  men 
select  this  site  for  the  foundation  of  Rome  —  healthful  hills, 
a  convenient  river  equally  adapted  to  maritime  and   inland  Rome's 
trade,  the  sea  not  too  far  off  to  present  an  active  international  commerce! 
commerce,  nor  so  near  as  to  expose  the  city  to  a  sudden  attack 
from  foreign  vessels;  a  site  in  the  center  of  the  peninsula,  a 
situation  made,  as  it  were,  on  purpose  to  allow  the  city  to  be- 
come the  greatest  in  the  world."  *    The  result  of  such  a  favored 
situation  was  an  influx  of  foreigners  to  Rome  whose  need  of  law  The  praetor 
compelled  as  early  as  247  B.C.  the  appointment  of  a  praetor  peregni 
peregrinus,  the  praetor  of  foreigners,  whose  duty  it  became  to 
administer  justice  between  Roman  citizens  and  foreigners 
and  between  citizens  of  different  cities  within  the  Empire. 
As  such  praetor  could  not  rely  upon  the  law  of  any  one  city 
for  the  criteria  of  his  judgments,  he  naturally  turned  his  eyes 
to  the  codes  of  all  the  cities  from  which  came  the  swarm  of 
litigants  before  him.    While  the  laws  and  customs  of  the 
Italic  cities  were  no  doubt  similar  to  those  of  Rome  herself, 

was  sharing  the  fate  of  art."  Pollock  and  Maitland,  History  of  English  Law, 
i.3. 

1  Liv.  v.  354. 

B 


34 


THE  SCIENCE  OF  JURISPRUDENCE 


Earliest 


ative  Law. 


stoic 

p  y' 


those  of  the  Egyptians,  Carthaginians,  and  Syrians  were 
marked  by  many  peculiar  features  all  their  own.  Between  the 
two  extremes  stood  the  best  standards  of  comparison  in  the 
laws  and  customs  of  the  Greek  cities  which,  while  varying  a 
good  deal  in  detail  from  city  to  city,  seem  to  have  borne  a 
family  resemblance  to  one  another.1  Thus  we  encounter  what 
ig  perhaps  the  earliest  application  of  Comparative  Law,  em- 
pj0ye(j  for  the  purpose  of  extracting  from  the  codes  of  all  the 
nations  with  which  the  Romans  were  brought  into  commercial 
contact  a  body  of  principles  which  came  to  be  known  as  the  jus 
gentium,  law  common  to  all  nations.2  Before  this  new  growth, 
watered  by  the  learning  of  the  jurisconsults,  reached  its  matu- 
rity, the  intellectual  life  of  Rome  passed  under  the  dominion  of 
her  subjects  in  Attica  and  Peloponnesos,  just  after  they  had 
yielded  to  the  ascendency  of  the  Stoic  Philosophers  who  were 
ever  striving  to  discover  in  the  operations  of  nature,  physical, 
moral,  and  intellectual,  some  uniform  and  universal  force  per- 
vading all  things  that  could  be  designated  as  the  law  of  nature 

1  "This  jus  gentium,  or  body  of  rights,  possessed  by  man  as  a  citizen  of  the 
world,  was  a  code  of  private  international  law,  and  it  cannot  be  regarded  as 
being  even  purely  Italian.  A  nation  that  borrowed  its  alphabet  from  a  Chal- 
cidian  city,  that  imitated  the  military  organization  of  the  Hellenes,  that  traded 
in  the  sixth  century  with  Sicily,  Sardinia,  Libya,  and  Carthage,  must  have  been 
deeply  imbued  with  the  customs  of  the  Greek  and  Phoenician  world.  Nor  was 
this  code  a  growth  of  Rome's  supremacy,  for  her  commercial  preceded  her  politi- 
cal greatness.  Its  origin  dates  back  to  a  time  probably  anterior  to  the  Repub- 
lic, certainly  far  earlier  than  the  institution  of  the  praetorship.  "  Greenidge, 
Roman  Public  Life,  p.  294. 

3  It  seems  to  be  clear  that  such  a  conception  was  well  denned  as  early  as  the 
second  century  B.C.  Cic.  De  Off.  iii.  69-171.  Cf.  Professor  Nettleship,  Journal 
of  Philology,  xii.  169  ;  Voigt,  Das  Jus  Naturale,  passim.  "Towards  the  end 
of  the  republican  period,  it  would  seem  not  before  Cicero's  time,  it  became  the 
special  name  of  the  rules  administered  by  Roman  magistrates  in  causes  where 
Roman  law  proper  was  inapplicable,  by  reason  of  the  parties  not  being  both 
Roman  citizens  or  allies,  or  otherwise."  Pollock,  Introduction  and  Notes  to 
Maine's  "  Ancient  Law,"  p.  11.  And  here  we  should  keep  in  mind  Mr.  Bryce's 
suggestion  that  "the  Romans  did  not,  when  they  referred  any  particular  insti- 
tution to  the  jus  gentium,  necessarily  intend  to  convey  that  it  was  universally 
prevalent.  The  origin  of  hypotheca,  for  instance  (mortgage  of  immovables),  and 
of  the  syngraphe  (written  acknowledgment  of  a  debt)  was  due  to  Greek  usage, 
and  by  no  means  general  over  the  world.  "  Studies  in  History  and  Jurisprudence, 
pp.  583-584. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      35 

— the  embodiment  of  universal  reason.  With  the  growth  of 
the  dominion  of  Rome  and  the  consequent  necessity  for  the  ex- 
tension of  the  code  of  a  single  city  to  many  cities,  there  was  a 
natural  craving  for  the  discovery  of  legal  principles  capable  of 
universal  application.  In  response  to  such  a  demand  Com- 
parative Law  collected  the  data,  and  a  certain  branch  of  Greek 
philosophy  supplied  the  theory  upon  which  they  could  be 
worked  into  a  consistent  whole.  Thus  assisted,  the  Roman 
jurisconsults  constructed  out  of  the  elements  common  to  the 
laws  of  all  nations  the  jus  gentium,  a  body  of  principles  entirely 
distinct  from  the  indigenous  code  which  the  Roman  state  had 
established  for  itself.  Before  the  end  of  the  Republic  the  jus  Definitions 
gentium  had  assumed  definite  form,  and  Cicero,  who  was  the  gentium  by 
first  to  describe  it,  says  that  "  our  ancestors  distinguished  the  Clcero 
law  of  citizens  from  the  law  of  the  nations,  that  which  is 
proper  to  citizens  not  being  therewith  part  of  the  law  of  the 
nations,  whereas  that  which  belongs  to  the  law  of  the  nations 
ought  to  belong  to  the  law  of  citizens  also."  1  At  a  later  stage 
of  its  growth  Gaius  said:  "For  that  law  which  any  nation  andGaius. 
establishes  for  itself  is  its  own  proper  law  and  is  called  jus 
civile,  being  the  peculiar  law  of  that  state;  but  that  which 
natural  reason  establishes  among  mankind  in  general  is  uni- 
formly observed  by  all  people,  and  is  called  jus  gentium,  as 
that  law  which  all  nations  observe."  2  Such  was  the  origin 
and  such  the  nature  of  the  first  set  of  principles  which  can  be 
said  to  embody  a  philosophy  of  law.  As  such  principles  were 
the  result  of  generalizations  upon  elements  common  to  the 
laws  of  all  nations,  their  existence  was  supposed  to  indicate 

1  Itaque'  majores  aliud  jus  gentium,  aliud  jus  civile  esse  voluerunt.  Quod 
civile  non  idem  continue  gentium,  quod  autem  gentium,  idem  civile  esse  debet 
(De  Off.  iii.  17,  69).  In  another  place  Cicero  declares  that  the  jus  gentium,  like 
parts  of  the  jus  civile,  is  unwritten,  i.e.  not  included  in  statutory  enactments. 
Orat.  Partit.  xxxvii.  130. 

3  Nam  quod  quisque  populus  ipse  sibi  jus  constituit,  id  ipsius  proprium  est 
vocaturque  jus  civile  quasi  jus  proprium  ipsius  civitatis ;  quod  vero  naturalis 
ratio  inter  omnes  homines  constituit,  id  apud  omnes  populos  perseque  custoditur 
vocaturque  jus  gentium,  quasi  quo  jure  omnes  gentes  utuntur.  Institutes,  i.  1. 


36  THE  SCIENCE  OF  JURISPRUDENCE 

a  similarity  in  the  needs  and  legal  conceptions  of  all  peoples. 
The  philosophic  element  was  the  Stoic  conception  of  a  law  of 
nature,  a  universal  code  from  which  all  particular  systems 
were  supposed  to  be  derived  and  to  which  all  tended  to  assimi- 
Effect  of  late.  By  the  broad  conceptions  embodied  in  the  jus  gentium 
on/us  civile.  ^ne  strict  and  narrow  archaic  law  of  Rome  was  so  enriched  and 
expanded  that  in  time  the  jus  civile  was  largely  superseded. 
Finally  it  could  be  said :  "  Roman  law  was  finished ;  the  local 
law  of  the  city  had  passed  into  a  law  available  for  the  world  in 
general."  l  From  the  foregoing  we  ascertain  (1)  that  the 
growth  of  the  dominion  of  Rome  and  consequent  necessity 
for  the  extension  of  the  law  of  a  single  city  to  many  cities 
prompted  the  discovery  of  legal  principles  capable  of  universal 
application;  (2)  that  the  handmaiden  who  gathered  the 
materials  to  which  the  analytical  Science  of  Jurisprudence  was 
applied  was  Comparative  Law;  (3)  that  the  function  performed 
by  that  science  was  the  formulation  from  data  thus  gathered 
of  an  orderly  scheme  of  the  purposes,  methods,  and  juristic 
ideas  common  to  every  system  of  positive  law  to  the  end  that 
there  might  be  a  uniform  conception  of  legal  right;  (4)  that 
the  first  fruit  of  the  application  of  the  Science  of  Jurisprudence 
to  the  data  gathered  by  Comparative  Law  at  Rome  was  the 
Jurispru-  jus  gentium.  It  follows  therefore  that  Jurisprudence  is  from 
applied*"1  ^s  very  nature  an  applied  science  whose  generalizations  must 
science.  j-jg  ma(je  anew  whenever  the  data  change  through  the  crea- 
tion of  new  systems  of  positive  law.  The  motive  for  the 
application  of  the  science  is  eternal,  the  establishment  of 
a  uniform  conception  of  legal  right,  while  the  occasion  for 
its  application  must  depend  upon  the  growth  out  of  progressive 
history  of  such  new  relations  of  mankind  as  are  generally  recog- 
nized as  having  legal  consequences.  If  it  be  necessary  to  de- 
fend the  assertion  that  Jurisprudence  is  an  applied  science, 
it  may  be  stated,  in  the  words  of  Emerson,  that  "science  is 

1  Sohm,  Institute*,  p.  86. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      37 

nothing  but  the  finding  of  analogy,  identity  in  the  most  remote 
parts."  *  It  is  called  applied  "when  its  laws  are  employed 
and  exemplified  in  dealing  with  concrete  phenomena,  as 
opposed  to  pure  science,  as  mathematics,  when  it  treats  of  laws 
or  general  statements  apart  from  particular  instances." 2 
As  Jurisprudence  must  be  applied  and  reapplied  to  concrete 
phenomena  which  is  ever  changing,  it  can  hardly  be  denied 
that,  as  a  science,  it  is  at  once  applied  and  analytical.  It  is 
equally  evident  that,  as  a  science,  it  is  a  unity  indivisible  into  AS  a 
" general"  and  "particular."  Such  meaningless  phrases  as  ^divisible.18 
"particular  jurisprudence,"  "equity  jurisprudence,"  "criminal 
jurisprudence,"  should  be  corrected  by  the  substitution  in  such 
phrases  of  the  word  "  law  "  for  Jurisprudence.  After  sanction- 
ing such  inadmissible  divisions,  which  Holland  so  justly  con- 
demns,3 Dillon  has  well  said :  "  Shortly  stated,  Jurisprudence 
is  concerned  with  the  whole  body  of  the  law  and  signifies  the 
science  of  law,  or  the  scientific  knowledge  of  jural  relations  and 
the  legal  principles,  doctrines,  and  rules  which  govern  such  rela- 
tions." 4  In  the  light  of  the  foregoing  the  Science  of  Jurispru-  Science 
dence  may  be  defined  to  be  an  analytical  and  applied  science,  prudence 
which  must  be  applied  and  reapplied  to  the  data  collected  by  defined- 
Comparative  Law  as  often  as  it  may  be  necessary  to  extract 
from  the  mass  of  details,  embodied  at  any  given  epoch  in  the 
then  existing  systems  of  positive  law,  the  comparatively  few 
basic  ideas  underlying  the  infinite  variety  of  legal  rules.  As 
such  basic  ideas  seemed  to  be  bottomed  in  the  common  nature 
of  man,  there  is  ground  for  the  hope  that  ultimately  there  may 
emerge,  in  the  modern  world  as  in  the  ancient,  a  common  and 
universal  conception  of  legal  right. 

4.  To  Cicero  we  are  indebted  not  only  for  the  earliest  defini-  Cicero's 
tions  of  the  jus  gentium,  but  for  the  best  indication  of  the  pro-  of Tphiloso- 
cesses  through  which  the  Science  of  Jurisprudence  evolved  it  phy  of  law- 

1  Miscellanies,  p.  75.  2  Century  Dictionary  and  Cyclopedia,  "Science." 

*  Elements  of  Jurisprudence,  pp.  10,  13. 

*  Laws  and  Jurisprudence  of  England  and  America,  p.  21. 

S07158 


38  THE  SCIENCE  OF  JURISPRUDENCE 

from  the  materials  collected  at  Rome  by  Comparative  Law. 
Besides  the  definitions  quoted  already,  there  is  the  more  fa- 
mous one  in  which  he  says  that  the  jus  gentium  is  not  one  law 
for  Rome  and  another  law  for  Athens,  one  law  to-day  and 
another  law  to-morrow,  but  one  eternal  and  immortal  law  for 
all  time  and  for  all  nations,  just  as  God,  the  common  master 
and  ruler  of  all,  is  one.1  Here  we  have  a  clear  recognition  not 
only  of  the  presence  of  the  material  elements  common  to  the 
codes  of  all  city-states,  but  of  the  Stoic  theory  of  a  universal 
law  of  nature  identical,  as  Chrysippus  says,  with  Zeus,  the 
supreme  administrator  of  the  universe.2  In  addition  to  such 
A  chapter  definitions  we  find  in  a  chapter  of  the  De  Oratore  a  graphic 
Orator*.  and  detailed  statement  of  Cicero's  ideal  of  a  comprehensive 
and  philosophic  treatise  upon  the  entire  body  of  Roman  law, 
which  he  said  he  hoped  would  be  written  either  by  his  own 
or  some  other  hand.  That  remarkable  chapter  which  defies 
abridgment,  and  to  which  due  attention  has  never  been  given, 
is  as  follows :  "  The  knowledge  of  almost  all  the  things,  which 
are  now  reduced  to  sciences,  was  once  scattered  and  dispersed ; 
for  instance,  in  music,  rhythm,  pitch,  and  melody ;  in  geometry, 
lines,  figures,  distances,  and  magnitudes;  in  astronomy, 
the  revolutions  of  the  heavens,  the  risings,  settings,  and  move- 
ments of  the  stars ;  in  the  study  of  literature,  the  handling  of 
the  poets,  the  knowledge  of  history,  the  explanation  of  words, 
viz.  etymology  and  grammar,  the  sounds  to  be  pronounced; 
finally,  in  this  very  art  of  rhetoric  of  which  we  are  talking,  the 
invention,  expression,  arrangement,  memorizing,  and  delivery 


1  Non  erit  alia  lex  Romae,  alia  Athenis,  alia  nunc,  alia  posthac;    sed  et 
omnes  gentes  et  omni  tempore  una  lex,  et  sempiterna,  et  immortalis,  continebit, 
unusque  erit  communis  quasi  magister  et  imperator  omnium  Deus.     Fragment 
of  his  De  Republica  preserved  by  Lactantius,  Div.  Inst.  vi.  8,  7.     Cicero  "suc- 
ceeded admirably   in    transcribing    the   current   ideas   of   the   Greek   schools, 
especially  those  of  the  Stoics,  in  a  language  far  more  attractive  and  eloquent 
than  that  of  his  post- Aristotelian  models."     Pollock,  History  of  the  Science  of 
Politics,  p.  31. 

2  Cf.  Chrysippus,  Apud  Plvt.  de  Stoic.  Rep.  9 :  Apud  Diog.  Laert.,  vii.  88. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED       39 

seem  to  have  been  at  one  time  unknown  to  all,  or  at  least  the 
knowledge  of  them  seems  to  have  been  entirely  unconnected. 
Therefore  there  was  applied  from  without  a  science  of  a  different 
genus,  which  the  philosophers  claim  as  entirely  their  own,  a 
science  of  such  a  nature  as  to  cement  and  bind  by  a  system  the 
parts  of  a  subject  hitherto  unconnected  or  even  torn  apart.1 
Therefore  let  us  take  the  final  end  of  the  jus  civile  to  be  this, 
the  preservation  in  the  dealings  and  disputes  of  citizens  of 
an  equity  based  on  law  and  custom.  Then  its  genera  must  be 
reduced  to  a  fixed  number  and  one  as  small  as  possible.  A 
genus  is  that  which  embraces  two  or  more  divisions  (paries) 
alike  in  possessing  certain  qualities  in  common  but  differing 
in  species.2  The  divisions  are  subordinate  to  the  genera 
from  which  they  proceed,  and  the  force  possessed  by  all  names 
of  the  genera  and  divisions  must  be  set  forth  in  definitions. 
A  definition  is  a  brief  but  comprehensive  statement  of  those 
qualities  which  are  peculiar  to  the  thing  we  wish  to  define. 
To  this  I  should  add  examples  were  I  not  well  acquainted 
with  my  hearers.  As  it  is,  I  shall  put  into  a  few  words  what 
I  have  proposed.  If  I  should  be  permitted  to  do  what  I  have 
long  been  planning,  or  if  somebody  else  should  undertake 
the  task  while  I  am  otherwise  engaged,  or  accomplish  it  after 
my  death  —  as  soon  as  some  one  shall  divide  the  whole  jus 
civile  into  its  genera,  which  are  very  few,  next  distribute 
what  we  may  call  the  members  of  these  genera,  and  then  set 
forth  in  definitions  the  proper  force  of  each  (term  employed), 
you  will  have  a  perfected  science  of  the  jus  civile,  large  and 
full  indeed,  but  neither  difficult  nor  obscure.  In  the  mean- 

1  Adhibita  est  igitur  ars  quaedam  extrinsecus  ex  alio  genere  quodam ;  quod 
sibi  tot  urn  philosophi  adsumunt,  quae  rem  dissolutam  divolsamque  congluti- 
naret  et  ratione  quadam  constringeret. 

2  Place  in  juxtaposition  Pollock's  statement:   "He  (Maine)  showed,  on  the 
one  hand,  that  legal  ideas  and  institutions  have  a  real  course  of  development 
as  much  as  the  genera  and  species  of  living  creatures,  and  in  every  stage  of  that 
development  have  their  normal  characters."     Introduction  and  Notes  to  Maine's 
"Ancient  Law,"  p.  viii.     Cicero  saw  dimly  what  Maine  saw  clearly. 


40  THE  SCIENCE  OF  JURISPRUDENCE 

time,  while  the  scattered  fragments  are  being  combined,  a 
person  may  get  a  truly  scientific  knowledge  of  civil  law  (justa 
juris  dvilis  scientia),  if  he  will  only  cull  and  gather  what  he 
can  here,  there,  and  everywhere."  1 

Essence  Where  in  the  juristic  literature  of  our  own  time  can  be  found 

unexecuted    a  description  of  what  is  now  known  as  the  philosophy  of  law 
plan.  more  terse  and  lucid  than  that  in  which  Cicero  says :  "  There- 

fore there  was  applied  from  without  a  science  of  a  different 
genus,  which  the  philosophers  claim  as  entirely  their  own,  a 
science  of  such  a  nature  as  to  cement  and  bind  by  a  system 
the  parts  of  a  subject  hitherto  unconnected  or  even  torn 
apart.  ...  A  person  may  get  a  truly  scientific  knowledge 
of  civil  law  (justa  juris  civilis  scientia)  if  he  will  only  cull 
and  gather  what  he  can  here,  there,  and  everywhere."  By 
the  aid  of  that  extrinsic  science,  called  herein  the  Science  of 
Jurisprudence,  Cicero  proposed  first  to  analyze  the  entire 
body  of  separate  and  uncombined  principles  lying  at  the  foun- 
dation of  Roman  law,  and  then  to  rearrange  and  unite  them 
in  one  harmonious  and  philosophic  whole.  Despite  the  fact 
that  neither  Cicero  nor  any  later  philosopher,  Greek  or  Ro- 
man, Academic  or  Stoic,  ever  actually  made  such  a  treatise 
Bryce's  as  he  designed,  is  it  fair  for  Mr.  Bryce  to  say  that  there  was 
conclusion.  "No  Philosophy  of  Law  among  the  Roman  Jurists,"  especially 
when,  in  describing  the  Comparative  Method,  he  admits  that 
"the  process  is  something  like  that  which  a  Roman  praetor 
might  have  followed  in  constructing  the  general  or  theoretical 
part  of  his  jus  gentium.  If,  indeed,  we  are  to  suppose  the 
praetor  ever  really  did  study  the  laws  of  the  various  neighbors 
of  Rome,  he  was  one  of  the  founders  of  this  method, 
though  to  be  sure  the  Roman  commissioners,  who  are  said  to 
have  been  sent  out  to  examine  the  laws  of  other  countries 
before  the  Decemviral  legislation,  preceded  him  in  this 

1  De  Oral.,  i.  42.     Unfortunately  Cicero's  treatise,  De  Jure  Civile  in  Artem 
redigendo,  mentioned  by  A.  Gellius,  i.  22,  is  lost. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED       41 

attempt."  *  Why  should  there  be  either  doubt  or  hesitation 
as  to  the  fact  that  the  'praetor  peregrinus  did  actually  evolve  the 
jus  gentium  through  the  application  of  the  Science  of  Jurispru- 
dence, no  doubt  in  an  incipient  form,  to  the  data  collected  at 
Rome  by  Comparative  Law  ?  The  comparative  anatomist  does 
not  falter  in  the  making  of  his  reconstructions  because  a  bone 
is  missing  here  and  there.  The  power  to  close  up  such  gaps,  to 
supply  such  deficiencies,  represents  the  true  value  of  his  art. 
There  is  no  good  reason  to  doubt  that,  through  the  application 
of  the  incipient  Science  of  Jurisprudence  to  the  data  collected 
by  Comparative  Law,  the  Roman  jurists  were  able  to  extract 
from  the  various  codes  of  the  cities  with  which  Rome  came 
into  commercial  contact  a  set  of  principles  embodying  the 
general  conceptions  of  legal  right  then  dominant  in  the  ancient 
world.  After  the  lapse  of  twenty  centuries  a  new  system  of 
codes,  far  greater  in  number  and  far  more  voluminous  in  de-  Necessity 
tail,  have  come  into  existence,  from  which  the  jurists  of  to-day  modem 
should  be  able  to  extract,  through  a  reapplication  of  the  '"*  9entlum- 
Roman  method,  the  comparatively  few  basic  principles  which 
underlie  them  all.  As  more  rapid  intercommunication  draws 
the  nations  of  the  world  closer  together,  the  longing  increases 
for  a  uniform  conception  of  legal  right  which  must  emerge, 
if  at  all,  from  the  existing  codes  like  the  single  and  typical  face 
in  a  composite  photograph  to  which  many  features  have  con- 
tributed their  influence.  In  order  to  work  out  such  a  result  How  that 
Comparative  Law  must  first  collect  the  data  from  all  existing 
codes ;  then  to  the  data  thus  collected  the  Science  of  Jurispru- 
dence must  be  so  applied  as  to  extract  those  fundamental 
conceptions  which,  as  essentials,  lie  at  the  base  of  all  legal 
systems,  such  as  obligation,  duty,  right,  law,  liability,  custom. 
From  these  more  general  conceptions  the  process  must  be 
extended  to  a  second  order  of  ideas,  more  purely  legal,  such  as 

1  Studies  in   History   and   Jurisprudence,    pp.  xix,  619.      See  also  p.  607. 
There  he  says,  "Where  is  the  legal  philosophy  of  the  Romans  to  be  found?  " 


THE  SCIENCE  OF  JURISPRUDENCE 


One  basis 
for  hope. 


Five  orig- 
inal law 
systems. 


Chinese 
law. 


possession,  ownership,  sales,  contract,  conveyance,  marriage, 
guardianship,  inheritance,  crime,  fraud,  negligence,  pledge, 
lien,  prescription,  bailment,  and  partnership.  These  basic 
conceptions,  which  can  thus  be  stated  within  a  comparatively 
narrow  compass,  with  a  few  others  of  minor  importance,  ap- 
pear in  every  fully  developed  legal  system  and  thus  constitute 
the  subject-matter  to  which  the  Science  of  Jurisprudence  must 
be  applied.  If,  through  a  reapplication  of  that  science  to  data 
collected  by  Comparative  Law  from  all  existing  codes,  a  new 
jus  gentium  should  be  established  for  the  modern  world  emr 
bodying  a  uniform  conception  of  legal  right,  there  could  be 
no  difference  of  view  as  to  the  inestimable  value  of  the  result. 
The  only  question  is  as  to  the  possibility  of  its  attainment. 
The  basis  for  such  a  hope  is  in  the  fact  that  while,  as  will  be 
pointed  out  in  the  next  section,  there  are  five  original  law 
systems  from  which  existing  codes  are  derived,  there  are  but 
two  in  which  the  more  important  nations  are  really  concerned. 
Roman  and  English  law  are  now  extended  over  perhaps  nine 
tenths  of  the  globe.  These  two  systems,  the  one  originating 
in  the  code  of  a  single  Italian  city,  the  other  in  the  customs 
of  a  group  of  Teutonic  tribes,  practically  divide  the  world  be- 
tween them. 

5.  If  it  be  true  that  the  Science  of  Jurisprudence  should  be 
applied  to  the  entire  data  which  Comparative  Law  collects 
and  tabulates  from  the  legal  institutions  of  existing  states,  the 
first  inquiry  to  be  made  is  this :  What  are  the  existing  systems 
of  positive  law  from  which  such  data  must  be  drawn  ?  View- 
ing the  matter  from  the  standpoint  of  Comparative  Law,  there 
are  five  original  systems  from  which  the  laws  of  the  different 
countries  are  derived,  which  may  be  thus  arranged  in  the  order 
of  their  relative  importance:  (1)  the  Roman  law  system; 
(2)  the  English  law  system ;  (3)  the  Muhammedan  law  system ; 
(4)  the  Hindu  law  system;  and  (5)  the  Chinese  law  system. 
Leaving  China  out  of  view,  isolated  as  she  is  with  customs  all 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      43 

her  own,  Turkey,  North  Africa,  Persia,  Western  Turkestan, 
and  Afghanistan  may  be  designed  as  the  countries  which  obey  Muham- 
the  sacred  law  of  Islam,  where  law  is  religion  and  religion  law, 
their  equal  authority  resulting  from  their  common  origin  in 
the  same  divine  revelation.1    When  the  English  began  the 
conquest  of  India,  they  found  two  great  systems  of  customary 
law,  Hindu  and  Mussulman,  there  existing  side  by  side,  to- 
gether with  other  minor  bodies  of  customs  prevailing  among 
particular  sects.     In  the  Hindu  principalities  Hindu  law  was  Hindu  law. 
dominant,  and  the  Hindu  law  of  family  relations  and  of  in- 
heritance was  recognized  as  that  by  which  the  Hindus  lived, 
even  where  the  sovereign  was  a  Mussulman.    British  officials, 
accepting  what  they  found,  applied  Mussulman  law  to  Mussul- 
mans, Hindu  law  to  Hindus,  and  in  the  few  places  where  they 
were  to  be  found,  Parsi  law  to  Parsis,  Jain  law  to  Jains. 
Personal  law  upon  the  basis  of  creed  was  thus  applied,  as  per- 
sonal law  upon  the  basis  of  race  had  been  applied  in  Europe 
in  the  sixth  century  to 2  Franks,  Burgundians,  and  Romanized 
Gauls.     And  so  matters  remain  in  India  to  this  day  as  to  those  Law 
parts  of  the  law  which  are  interlaced  with  religion,  marriage,  oFinSa. 
adoption  (among  Hindus),  and  other  family  relations,  and 
with  the  succession  to  property.3    In  a  law  review  now  pub- 
lished at  Allahabad  may  be  read  from  month  to  month  cases 
thus  decided  under  Hindu  and  Muhammedan  law  in  the  Indian 
courts  of  English  creation,  subject  to  appeal  to  the  English 
Privy  Council.4    In  describing  the  many  different  kinds  of  English 
law  applied  by  that  far-reaching  body,  M.  Speyer  has  recently  council, 
said:   "De  me'me  le  Comite"  judiciare  du  Conseil  prive",  en  sa 

1  Cf.  Rodolphe  Dareste,  Etudes  d'Histoire  du  Droit,  iii.,  Le  Droit  Musulman. 

2  "In  the  British  India  of  to-day  we  may  see,  and  on  a  grand  scale,  what 
might  be  called  a  system  of  personal  laws,  or  racial  laws. "     Pollock  and  Mait- 
land,  History  of  English  Law,  i.  15,  2d  ed. 

'  Bryce,  Studies  in  History  and  Jurisprudence,  pp.  97  sq.  See  also  Dareste. 
tftudes  d'Histoire  du  Droit,  iv.,  Les  Anciens  Codes  Brahmanigues. 

*  See  No.  20,  December,  1905,  of  the  Allahabad  Law  Journal,  pp.  798,  810. 
In  the  case  first  cited  Hindu  law  was  applied  to  the  construction  of  a  deed  of 
gift ;  in  the  second  Muhammedan  law  was  applied  to  a  question  of  succession. 


44  THE  SCIENCE  OF  JURISPRUDENCE 

qualit^  de  tribunal  colonial  supreme,  aplique  avec  une  e"gale 
impartiality  tantot  la  legislation  frangaise  de  la  province  de 
Quebec,  tantot  le  droit  romano-hollandais  de  la  colonie  du 
Cap,  ou  encore  les  coutumes  boudhistes,  le  droit  musulman  et 
les  lois  ultra-modernes  des  colonies  australiennes,  de  sorte 
qu'il  en  arrive  ainsi  a  interpreter,  en  une  meme  audience,  un 
passage  du  Goran  et  une  loi  australienne  appliquant  les  doc- 
trines socialistes."  *  From  the  outset,  of  course,  the  com- 
paratively small  body  of  Englishmen  who  have  governed 
English  law  India  applied  English  law  to  themselves.  Not,  however, 

in  India. 

until  late  in  the  eighteenth  century  did  they  begin  to  make 
even  a  limited  extension  of  it  to  the  native  populations  through 
a  law  of  procedure.  By  an  act  of  Parliament  of  1781  the 
Indian  government  was  authorized  to  make  regulations  for 
the  conduct  of  the  provincial  courts,  with  the  proviso  that  the 
rules  and  forms  for  the  execution  of  process  were  to  be  adapted 
to  the  religion  and  manners  of  the  natives.  After  failing  to 
apply  satisfactorily  the  penal  law  which  the  Mussulman  po- 
tentates had  enforced,  —  many  of  its  provisions  being  such  as 
no  Christian  government  could  recognize,  —  the  English  began 
the  work  of  codifying  the  penal  laws  through  the  Indian  Law 
Indian  Commission  of  1833,  of  which  Macaulay  was  the  central  light. 
The  Penal  Code  which  resulted,  the  noblest  product  of  Macau- 
1853,  iay>s  genius>  Was  not  enacted  into  law  until  1860,  and  then 
through  the  efforts  of  a  second  commission  appointed  under  an 
act  of  1853,  which  secured  also  the  enactment  of  Codes  of 
Civil  and  Criminal  Procedure.  Partly  through  the  efforts 
of  a  third  commission  appointed  in  1861,  the  law  of  India  has 
been  further  codified  and  amended  through  a  series  of  enact- 
ments declaring  it  applicable  to  both  Europeans  and  natives, 
notable  among  which  are  the  Indian  Evidence  Act  of  1872, 
drawn  by  Sir  James  Fitzjames  Stephen,2  and  the  acts  relating 

1  La  Constitution  Juridique  de  I'Empire  Colonial  Britannique,  p.  243. 

2  See  Stephen,  Digest  of  the  Law  of  Evidence,  Introduction. 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      45 

to  the  limitation  of  actions  (1877),  specific  relief  (1877),  pro- 
bate and  administration  (1881),  and  negotiable  instruments 
(1881).  Outside  of  the  spheres  covered  by  these  enactments 
Englishmen,  Mussulmans,  and  Hindus  continue  to  live  under 
their  respective  laws.  When  no  native  law  or  custom  can  be  When  no 

,_.,...,  ,,  , .       ,  .  ,         .  native  law 

proven,  the  English  judge  naturally  applies  his  own  law  in  an  Or  custom 
untechnical  spirit.    Is  the  process  of  legal  development  in  proven. 
India  to  end  within  the  limits  of  that  compromise;   or  is  it 
to  continue  until  the  law  of  the  governing  and  stronger  race 
has  entirely  absorbed  and  supplanted  that  of  the  native 
populations  ? l 

After  all  fair  deductions  have  been  made  in  favor  of  the 
spheres  occupied  by  the  Chinese,  Muhammedan,  and  Hindu  Roman  and 
law  systems,  the  fact  remains  that  the  Roman  and  English  doSinate^ 
law  systems  now  cover  nearly  the  whole  of  the  civilized,  and  the  world- 
most  of  the  uncivilized,  world.     Roman  private  law,  as  modi- 
fied by  national  or  local  family  customs  or  land  customs  and 
by  modern  legislation,  survives  in  substantially  all  the  Euro- 
pean countries  which  formed  part  either  of  the  ancient  or  of 
the  medieval  Roman  Empire.    Its  main  strongholds  in  West-  strong- 
ern  Europe  are  Italy,  Spain,  Portugal,  France,  Switzerland, 
Germany  (including  the  German  and  Slavonic  parts  of  the 
Austro-Hungarian  monarchy),  Holland,  and  Belgium.    From 
Spain  or  Portugal  it  has  passed  to  Mexico,  Central  America, 
South  America,   Cuba,   Porto   Rico,   and   the   Philippines. 
From  France  or  Holland  it  has  passed  to  the  Canadian  province 
of  Quebec,   Louisiana,   Ceylon,   Mauritius,   British   Guiana, 
South  Africa,  French  Africa,  the  Dutch  and  French  East 
Indies.     From  Germany  it  has  passed  to  German  Africa. 
To  these  areas  must  be  added,  in  Western  Europe,  Scotland 

1  In  attempting  to  answer  those  questions,  Mr.  Bryce  has  said :  "Which  of 
these  two  things  will  happen  depends  upon  the  future  of  the  native  religions 
and  especially  of  Hinduism  and  of  Islam,  for  it  is  in  religion  that  the  legal  cus- 
toms of  the  natives  have  their  roots."  Studies  in  History  and  Jurisprudence, 
p.  118. 


46  THE  SCIENCE  OF  JURISPRUDENCE 

which,  since  the  establishment  of  the  Court  of  Session  in 
1532,  has  built  up  its  law  out  of  Roman  civil  and  to  some  slight 
extent  Roman  canon  law  materials.    As  outlying  provinces, 
more  or  less  closely  connected  with  the  system  of  Roman  pri- 
vate law.  may  be  mentioned  Greece,  Servia,  Bulgaria,  Rou- 
mania,  Russia,  Poland,  the  Scandinavian  countries,  and  Japan, 
strong-         as  will  be  more  fully  explained  hereafter.    The  strongholds 
English  law.  °f  English  law  are  England,  Wales,  and  Ireland,  and  most  of 
the  British  colonies,  including  Australia,  New  Zealand,  and 
all  Canada  except  Quebec ;  and  the  United  States  of  America, 
except  Louisiana,  and  the  new  dependencies  in  which  Roman 
or  native  law  is  administered.     It  thus  appears  that  the  Ro- 
man and  English  law  systems  prevail  in  every  country  now 
asserting  any  appreciable  influence  upon  modern  civilization. 
While  the  area  occupied  by  Roman  law  and  its  dependencies 
is  the  wider  of  the  two,  the  fact  cannot  be  ignored  that  by  the 
rapid  growth  of  the  United  States  and  the  British  colonies 
and  the  extension  of  English  law  in  India  that  relation  may 
be  reversed  in  the  not  far-distant  future.    What  is  to  be  the 
Possibility     ultimate  outcome?    Is  one  system  to  supersede  or  supplant 
universal       the  other ;  or  is  there  to  be  an  assimilation  out  of  which  there 
private  law   s^a^  ar*se  a  universal  c°de  of  private  law,  embodying  a  system 
of  rules  substantially  identical  as  to  property  and  contracts, 
enforcible  through  a  uniform  system  of  civil  procedure  ?    For 
centuries  the  process  of  assimilation   has   been   advancing 
through  the  absorption,  as  will  be  demonstrated  hereafter  in 
detail,  by  the  English  system  of  masses  of  Roman  law  mate- 
rials which  have  been  embedded  in  the  equitable,  canonical, 
admiralty,  and  commercial  branches  of  English  law  to  an  ex- 
tent never  fully  realized  or  at  least  admitted  until  very  recent 
And  of  civil   times.    The  commercial  law  of  all  civilized  nations  is  every- 
procedure.     where  substantially  the  same,  and  nothing  is  more  marked 
than   the   tendency  now  growing   among   English-speaking 
peoples  on  both  sides  of  the  Atlantic  to  substitute  for  com- 


JURISPRUDENCE  AND  ITS  PROVINCE  DEFINED      47 

mon  law  pleading  the  more  convenient  and  reasonable  forms 
of  procedure  in  use  during  the  later  Empire,  and  now  known 
in  the  United  States  as  "the  reformed  code  procedure." 
There  is  an  equally  strong  tendency  here,  in  the  commercial  Disuse  of 
cities,  to  withdraw  complicated  business  transactions  from  ^vlTcsse 
the  consideration  of  juries  in  order  to  submit  them  to  a  referee 
(judex).  Long  ago  there  was  a  revival  in  the  English  univer- 
sities of  the  study  of  Roman  law,  which  has  extended  to  this  study  of 
country  where  interest  has  been  quickened  in  the  subject 
by  the  closer  relations  recently  established  with  Cuba,  Porto 
Rico,  and  the  Philippines.  All  jurists  of  the  more  ambitious 
kind  within  the  English-speaking  world  now  understand  that 
in  order  to  be  fully  equipped  they  must  master,  to  a  reason- 
able extent  at  least,  Roman  as  well  as  English  law.  Follow- 
ing the  method  prescribed  by  the  Historical  School,  an  effort 
will  be  made  in  the  two  following  chapters  to  draw  out,  within 
narrow  limits,  the  external  histories  first  of  Roman  and  then  of 
English  law,  considered  as  continuous  evolutions,  as  connected 
wholes,  special  emphasis  being  given  to  the  time  and  manner 
in  which  the  latter  has  been  enriched  and  expanded  by  mate- 
rials drawn  from  the  former.  Only  through  such  a  method  of 
comparative  study  can  the  student  of  the  Science  of  Jurispru- 
dence supply  himself  with  the  materials  necessary  for  his  de- 
ductions. 


CHAPTER   in 

EXTERNAL  HISTORY  OP  ROMAN  LAW 

Failure  of         1.  It  cannot  be  denied  that  the  Greeks  produced  nothing 
to  produce  a  to  which  the  term  "Jurisprudence,"  as  the  name  of  a  science, 


could  possibly  be  applied.  And  yet  the  growth  of  law  began, 
no  doubt,  in  Greece  earlier  than  in  Italy,  and  up  to  a  certain 
point  it  may  have  developed  more  brilliantly.  If  the  Greeks 
had  succeeded  in  building  up  an  extensive  and  powerful  em- 
pire, the  outcome  might  have  been  a  great  codification  that 
would  have  rendered  unnecessary  the  compilations  of  Jus- 
tinian. But  the  fact  is  that  no  such  thing  happened.  The 
NO  imposing  Greeks  left  behind  them  no  complete  or  imposing  legal  monu- 
momunents.  ments;  they  produced  nothing  which,  in  any  proper  sense, 
could  be  called  a  philosophy  of  law.  Of  their  conceptions  of 
law  and  procedure  we  can  only  catch  glimpses  from  the  Ho- 
meric poems,  from  the  fragments  that  remain  of  the  Hellenic 
codes,  from  the  details  of  law  and  practice  found  in  the  ora- 
tions of  Demosthenes  and  othe"r  Greek  orators,  from  what  Plato 
tells  us  in  the  Dialogues,  the  Republic,  and  the  Laws,  from 
the  fragments  of  a  legal  treatise  by  Theophrastus,  referred  to 
in  the  first  book  of  the  Digest  of  Justinian,  and  from  the  out- 
lines of  public  law  to  be  traced  in  the  politics  of  Aristotle.1. 
In  the  Greek  system  of  city-states,  internally  organized  after 
one  general  model,  were  contained  the  conditions  with  which 
Aristotle,  the  acknowledged  founder  of  political  science,  was 
brought  into  contact,  and  in  obedience  to  his  practical  tem- 
per, he  begins  his  speculations  with  a  description  of  the  forms 

1  Upon  the  whole  subject,  see  La  Science  du  Droit  en  Gr'ece,  Platan,  Aristote, 
Theophraste,  by  Rodolphe  Dareste.     Paris,  1893. 

48 


EXTERNAL  HISTORY  OF  ROMAN  LAW  49 

of  government  actually  existing  around  him.    It  is  probable 

that  in  order  to  collect  sufficient  data  to  support  the  statements 

and  conclusions  contained  in  his  Politics,  he  made,  as  a  pre-  Aristotle's 

paratory  study  thereto,  the  collection  called  the  Constitutions, 


which  is  said  to  have  contained  a  description  of  the  organiza- 

tion, manners,  and  customs  of  one  hundred  and  fifty-eight 

states  or  cities.1    The  Greek  city-state,  like  all  others  of  its 

type,  had  its  common  worship,  its  public  property,  and  its 

customary  law  whose  roots  struck  deep  down  into  the  institu- 

tions of  patriarchal  times.    The  customary  law,  the  blended  customary 

product  of  religious  and  secular  elements,  which  regulated 

within  the  city-state  persons  in  family,  clan,  and  tribe,  and 

things  in  the  same  relations  and  jurisdiction,  steadily  devel- 

oped, as  in  other  parts  of  the  Mediterranean  world,  down  to 

that  epoch  in  which  it  crystallized  into  the  written  codes  that 

appeared  in  Greece,  in  Italy,  and  on  the  Hellenized  seaboard  of  Written 

Western  Asia  at  periods  similar  in  point  of  the  relative  progress 

of  each  community.    Everywhere  in  the  countries  named, 

probably  as  the  result  of  the  discovery  and  diffusion  of  the  art 

of  writing,  the  archaic  rules  of  customary  law  reposing  in  the 

recollection  of  privileged  oligarchies  were  engraved  on  tablets 

and  published  to  the  people.2    And  here  a  sharp  distinction 

should  be  drawn  between  such  customs  as  took  organic  form 

in  response  to  the  conditions  and  exigencies  of  the  social  life 

of  family,  clan,  and  tribe  within  the  ancient  city  and  those  that 

grew  out  of  the  affairs  of  trade  and  commerce  with  the  outer 

world.     Alongside  of  the  unelastic  written  codes,  into  which  Commercial 

were  condensed  domestic  and  interior  usages,  the  Greeks,  usages- 

who  were  a  busy,  commercial  people,  developed  another  kind 

of  customary  law,  consisting  of  the  usages  of  trader,  merchant, 

1  The  main  body  of  materials  thus  collected  has  been  lost,  but  the  fragments 
which  remain  have  been  collected  and  annotated  by  Neumann,  and  are  contained 
in  Bekker's  Oxford  edition  of  Aristotle. 

2  As  to  these  early  codes,  see  Maine,  Ancient  Law,  pp.  13—20,  and  Pollock, 
Introduction  and  Notes  to  Maine's  "  Ancient  Law,"  pp.  4-7. 


50  THE  SCIENCE  OF  JURISPRUDENCE 

and  mariner,  that  tended  to  facilitate  commercial  dealings 
between  man  and  man,  without  regard  to  the  lines  of  family, 
race,  or  nation.  It  is  more  than  probable  that  Greek  com- 
mercial usages  were  influenced  by  those  of  Egypt,  Phoenicia, 
and  Carthage;  and  in  Greek  literature  allusions  are  to  be 
found  to  commercial  agents  or  consuls  in  foreign  ports,  to 
societies  that  may  have  been  something  like  insurance  com- 
panies, and  to  loans  on  bottomry.  And  if  etymology  can  be 
accepted  as  a  safe  guide,  we  may  infer  that  certain  contracts, 
which  we  find  in  the  Roman  jus  gentium,  —  such  as  chiro- 
graphum,  an  acknowledgment  signed  by  the  debtor,  syn- 
grapha,  signed  by  both  creditor  and  debtor,  and  hypotheca, 
compared  in  its  early  stages  to  a  chattel  mortgage,  —  came 
from  Greek  commercial  law,  which  was  rich  in  the  invention 
of  methods  for  utilizing  credit.1  When  a  piece  of  real  estate 
is  delivered  to  a  pledgee  so  that  he  may  hold  it  as  security 
and  apply  its  revenues  to  the  debt,  the  contract  is  still  called 
in  some  modern  countries  by  its  Greek  name,  antichresis.2 
Military  And  it  is  probable  that  the  conception  of  the  tenure  under 
which  were  held  frontier  lands  granted  by  the  Roman  Empire 
to  soldiers  upon  condition  of  their  rendering  military  service 
in  border  warfare  was  of  Greek  origin.3  While  the  aristocratic 
and  agricultural  states  were  adverse  to  the  admission  of 
strangers  on  any  terms,  the  commercial  ones  favored  their  in- 
troduction. On  the  one  hand,  Sparta  in  her  earlier  days  for- 
bade her  citizens  to  go  abroad  and  refused  to  permit  strangers 
to  reside  within  her  bounds ; 4  on  the  other,  Athens  allowed 

1  I  refer  with  pleasure  to  the  profound  Studies  in  the  Civil  Law,  by  my  friend, 
William  W.  Howe,  LL.D.,  of  the  New  Orleans  bar,  pp.  91-93. 

2  Sohm,  Institutes,  p.  276. 

*  "Probably  the  conception  of  the  tenure  under  which  such  soldiers  held 
their  lands  was  borrowed  to  some  extent  from  the  attributes  of  the  interest  in 
land  called  emphyteusis."     Digby,  Law  of  Real  Property,  p.  30.     "Emphyteusis 
(tfupiirevffa),  literally  an  'implanting,'  is  a  perpetual  right  in  a  piece  of  land  that 
is  the  property  of  another,"  etc.     Smith's  Dictionary  of  Greek  and  Roman  An- 
tiquities, p.  400.     See  also  Institutes,  iii.  25,  3  Cooper's  notes. 

*  Plut.  Agesilaus,  10 ;   Lycurgus,  c.  27 ;  Thuc.  i.  144. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  51 


her  domiciled  aliens  (/terot^ot  )  to  enjoy  her  laws  through  the 
agency  of  a  patron  (Trpoo-Ta-n??),  subject,  however,  to  a  stran- 
ger's tax,  and  to  military  service  by  land  and  sea.1    The  com-  Resident 
mercial  communities  in  Greece  so  far  favored  the  admission  of  anTfreaty 
peaceful  aliens  within  their  walls  as  to  enter  into  international  makms- 
conventions  providing  for  the  mutual  administration  of  jus- 
tice to  resident  foreigners,  for  the  establishment  of  mixed  tri- 
bunals, or  even  for  the  grant  of  isopolity.2    In  "  Greek  diplo- 
macy, which,  considering  the  ground  it  covers,  is  vastly  fuller 
than  that  of  modern  times,  .  .  .  there  were  eight  or  ten 
technical  terms  to  express  the  different  sorts  of  treaties  into 
which  nations  might  enter."  3    From  the  following  precise 
and  accurate  definitions  it  appears  that  the  Greeks  had  a  clear 
understanding  of  the  nature  of  positive  law.     "Whatsoever  Defini- 
the  ruling  part  of  the  state,  after  deliberating  as  to  what 
ought  to  be  done,  shall  enact,  is  called  law."4    "Law  is  a 
definite  proposition,  in  pursuance  of  a  common  agreement 
of  a  state,  intimating  how  everything  should  be  done."5 

Over  and  above  these  positive  laws,  set  by  men  for  men, 
stood,  in  the  mind  of  the  Greek,  the  unwritten  and  steadfast 
customs  of  the  gods,  to  which  men  could  appeal  for  justice. 
When  King  Creon,  in  reproaching  Antigone  for  having  scat- 
tered ashes  upon  the  body  of  her  brother,  asked,  "  And  thou 
didst  dare  to  disobey  these  laws  ?"  she  answered  :  — 

"  Yes,  for  it  was  not  Zeus  who  gave  them  forth, 
Nor  Justice,  dwelling  with  the  Gods  below, 
Who  traced  these  laws  for  all  the  sons  of  men  ; 

1  Thuc.  iii.  16.     Cf.  Plut.  c.  37. 

3  Arist.  Pol.  iii.  1.  3;  5.  10.  The  word  l<roiro\irtta  is  also  used  by  Plutarch 
(ii.  300),  and  means  "  equality  of  civic  rights." 

3  Professor  H.  B.  Leech,  Essay  on  Ancient  International  Law,  p.  22. 

**0<ra  "y'&v  ri>  Kparovv  rijt  w6Xews  f}ov\ev<rd,/j*vov  &  XPV  *"<>««>'  7pfyVi  v6/MS 
KaXcFrai.  Xenophon,  Mem.  i.  2.  43. 

*  '0  vbfjuos  iffrl  X6"yoj  wpur/xepos,  Ka0'  6fw\oylav  KOLVTJV  7r6\f  a>s.  fiijinjuv  irws  8ct 
rpdrretv  txaffra.  Anaximenes,  Arist.  Rhet.  ad  Alex.  c.  i.  See  also  Demos- 
thenes, Adv.  Aristogeit.  (p.  774)  ;  Dig.  i.  3.  2.  Cf.  Holland,  Elements  of  Juris- 
prudence, pp.  41-43,  for  further  illustrations. 


52  THE  SCIENCE  OF  JURISPRUDENCE 

Nor  did  I  deem  thy  edicts  strong  enough, 

That  thou,  a  mortal  man,  shouldst  over-pass 

The  unwritten  laws  of  God  that  know  not  change. 

They  are  not  of  to-day  or  yesterday, 

But  live  forever,  nor  can  man  assign 

When  first  they  sprang  to  being." x 

And  yet  after  every  advance  made  by  the  Greeks,  either 
upon  the  practical  or  theoretical  side,  in  the  effort  to  estab- 
lish anything  like  a  science  of  positive  law  has  been  estimated 
at  its  full  value,  the  fact  remains  that  no  such  result  was  at- 
tained.2 With  the  aid  of  all  that  can  be  drawn  from  the  imper- 
fect survivals  heretofore  described,  distinguished  as  they  are  by 
a  lack  of  order  and  by  an  inability  to  sever  law  from  morality 
and  religion,  it  is  hard  to  negative  the  assertion  that  neither 
the  Greeks  themselves  nor  any  society  thinking  or  speaking 
in  their  language  ever  developed  the  smallest  capacity  for 
producing  anything  like  a  philosophic  system  of  jurispru- 
dence. It  was  reserved  for  the  Romans  to  present  to  the 
world  the  science  of  positive  law  as  an  original  contribution. 
Roman  2.  The  beginnings  of  Roman  law  are  embedded  in  the  tra- 

constitution     ...... 

in  the  regal  ditional  history  of  the  great  city-state  that  arose  on  the  banks 
of  the  Tiber  out  of  the  union  of  a  group  or  groups  of  village 
communities  which  certainly  coalesced  upon  the  general  plan 
dominant  in  the  Greek  and  Italian  peninsulas.  In  Italy 
the  village  community  appears  as  the  gens;  out  of  a  union  of 
gentes  arose  the  tribe ;  out  of  a  union  of  tribes  arose  the  city- 
state.  It  seems  to  be  clear  that  the  Italian  city  was  rather 
the  fortress,  the  place  of  meeting,  the  place  of  shelter,  of  the 
tribe  or  collection  of  tribes,  than  the  actual  home  and  dwelling 

1  Sophocles,  Antigone,  11.  449-460.     Plumptre's  translation,  p.  145. 

1  "There  cannot  well  be  a  science  of  law  without  such  a  profession  (i.e.  a 
distinct  profession  of  lawyers,  whether  as  judges  or  advocates).  .  .  .  In  Athens, 
at  the  time  of  Pericles,  and  even  of  Demosthenes,  there  was  a  great  deal  of  law, 
but  no  class  of  persona  answering  to  our  judges  or  counselors.  The  Attic  ora- 
tor was  not  a  lawyer  in  the  modern  sense."  Pollock  and  Maitlaiid,  History  of 
English  Law,  Introd.  p.  xxvii. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  53 

place  which  it  was  according  to  Greek  ideas.1    A  group  of 

Latin  villages  grew  together  to  form  a  border  fortress  of  La- 

tium  on  the  Etruscan  march.2    In  the  Latin  city  of  Rome,  Rome  as  an 

which  gathered  around  it  the  various  classes  of  citizens,  half-  dty-«tate!n 

citizens,  allies,  and  subjects,  all  looking  to  the  local  city  as 

the  common  center,  the  idea  of  the  single  independent  city  — 

the  ruling  city  —  reached  its  highest  development.    That  the 

people  so  united  were  in  the  main  homogeneous,  and  in  the 

main  of  Latin  descent,  seems  to  be  unquestionable.    The 

evidence  of  the  language,  the  religion,  the  institutions,  and 

civilization  of  early  Rome  points  to  the  conclusion  that  its 

immediate  progenitors  were  the  Latin  Lavinium  and  the  Latin 

Alba.    As  to  the  tradition  which  insists  on  the  admixture  of  its  Latin 

origin. 

at  least  two  non-Latin  elements,  a  Sabine  and  an  Etruscan, 
it  may  be  said  that  the  substance  of  the  tradition,  so  far  as  it 
relates  to  the  Sabine  element,  is  supported  by  the  great  major- 
ity of  modern  writers,  including  even  Mommsen  who,  while 
admitting  its  possibility,  throws  back  the  time  of  its  occur- 
rence to  an  earlier  period  than  that  of  the  union  of  the  two 
settlements.3    In  the  structure  of  the  early  Roman  state  the 
marks  of  the  fusion  of  communities  are  more  distinct  than  the  Fusion 
traces  of  the  admixture  of  races.    No  one  can  tell  how  long  munities. 
the  process  of  federation  was  in  progress,  while  of  the  consti- 
tution and  history  of  the  united  state  in  the  early  days  of  its 
existence  it  is  impossible  to  give  more  than  a  meager  outline. 
According  to  tradition  the  populus  Romanus  was  divided  Division 
into  three  tribes,  Ramnes,  Titienses,  and  Luceres,4  and  into  a 

1  "The  Latins  began  with  a  Markgenossenschaft,  and  the  town,  like  the  Brit- 
ish oppidum,  was  at  first  a  mere  place  of  defense  in  case  of  the  attacks  of  enemies." 
Freeman,  Comparative  Politics,  p.  257. 

*  That  is  the  view  of  Mommsen.     See  chapter  three  of  his  Rdmische  Geschichte. 

*  Rdmische  Geschichte,  i.  43.      Gilbert  (Topographic,  i.  c.  5)  accepts  the  Sabine 
settlement,  but  holds  correctly  that  in  the  union  the  Latin  element  decisively 
predominated. 

4  The  original  legend,  the  topography  of  which  there  seems  to  be  no  good 
reason  to  doubt,  comes  out  in  Dionysius,  ii.  60.  For  Mommsen's  treat- 
ment of  it,  see  Rdmische  Geschichte,  i.  33. 


M  THE  SCIENCE  OF  JURISPRUDENCE 

thirty  curiae  —  each  curia  representing  a  group  of  gentes, 
and  each  gens  a  group  of  families.  While  the  traditional 
statement  that  the  curia  was  formally  divided  into  a  fixed 
number  of  gentes  and  families  rests  on  no  substantial  historical 
foundation,  it  is  clear  that  the  gentile  organization  was  com- 
mon to  the  two  races,  at  least,  that  contributed  most  largely 
to  the  citizenship  of  Rome,  and  that  it  was  the  basis  of  the 

Curia  the      new  arrangement.1    The  curia,  whose  members  were  prob- 

keystone.  ^y  neighbors  and  kinsmen,  is  generally  regarded  as  the  key- 
stone of  the  primitive  political  system,  and  it  doubtless  repre- 
sents a  stage  in  political  development  midway  between  that 
in  which  clanship  is  the  sole  bond  of  union  and  that  in  which 
such  claims  as  those  of  territorial  contiguity  and  ownership 
of  land  have  obtained  recognition.  Even  in  Cicero's  time 
there  were  still  curies,  curial  festivals,  and  curiate  assemblies. 
As  a  primitive  association  the  curia,  which  possessed  common 
festivals,  common  priests,  and  a  common  chapel,  hall,  and 
hearth,  was  held  together  by  participation  in  common  sa- 
cra.2 The  members  of  the  thirty  curiae  constituted  the 

The  popuius  populus  Romanus,  and  the  earliest  known  condition  of  Roman 
citizenship  is  the  communio  sacrorum,  partnership  in  the 
curial  sacra.  The  soundest  view  is  that  the  primitive 
Roman  people  of  the  thirty  curiae  included  all  the  freemen 
of  the  community,  simple  as  well  as  gentle.3 

Elective  The  common  chieftain,  whose  appointment  federation  made 

necessary,  was  the  rex,  the  ruler  of  the  united  people.4 

1  "  But,  although  the  curiae  had  local  centers,  membership  of  these  bodies  did 
not  depend  on  residence  in  a  given  locality.  It  was  hereditary ;  and  if  the  mem- 
bers of  a  gens  migrated  from  its  curia,  the  gentiles  were  still  members  of  that 
state  division."  Greenidge,  Roman  Public  Life,  p.  41. 

8  Festus,  pp.  49,  62,  64.  The  curio  maximus  was  the  president  of  a  college 
formed  by  the  thirty  curiones.  Festus,  p.  126 ;  Liv.  xxvii.  8. 

1  Cf.  Mommsen  (Romische  Forschungen,  vol.  i.)f  as  to  the  vexed  question 
of  the  purely  patrician  character  of  the  curiae. 

*  That  he  was  once  the  priestly  head  of  a  community  bound  together  by  com- 
mon sacra  is  manifest  from  the  survival  of  a  rex  sacrificulus,  as  he  appears  in 
Livy,  vi.  41.  But  that  his  real  title  was  rex  sacrorum.  appears  from  Livy 
himself  (xxvii.  6). 


EXTERNAL  HISTORY  OF  ROMAN  LAW  55 

The  terms  interrex  and  interregnum  go  far  to  prove  not  only 

that  Rome  once  had  kings,  but  that  those  kings  were  elective 

and  not  hereditary.    There  must  have  been  a  time  when  the 

interrex  really  was,  as  his  name  implies,  the  magistrate  who 

was  to  preside  at  the  election,  not  of  consuls,  but  of  a  king. 

When,  in  later  times,  there  were  no  "patrician  magistrates" 

to  hold  elections  for  their  successors,  a  procedure  was  adopted 

which  we  have  every  reason  to  believe  represented  the  manner 

in  which  the  early  kings  were  chosen.1    When  the  king  died,  Method  of 

the  supreme  authority  reverted  to  the  council  of  elders,  the 

patres,  who,  representing  the  gentes,  appointed  an  interrex, 

who  in  turn  nominated  a  second,  or  even  a  third  or  fourth, 

by  whom  a  king  was  selected  in  consultation  with  the  elders. 

The  king-elect  was  then  offered  to  the  freemen  assembled  by 

their  curiae  for  their  formal  acceptance,  which  was  ratified 

by  the  patres,  as  security  that  the  sacra  had  been  respected 

of  which  they  were  guardians.2    When  once  installed  the  rex 

was  the  sole  ruler  for  life,  the  religious  head  of  the  state,  the 

absolute  leader  in  war,  the  supreme  judge  who  settled  all  dis- 

putes, and  punished  wrongdoers  even  with  death.     His  duty  Rights  and 

it  was  to  offer  the  solemn  sacrifices,  to  consult  the  gods,  to       '0 


announce  the  days  of  public  festivals,  and  to  impose  taxes.3 
The  vestal  virgins  guarded  the  sacred  fire  on  the  common 
hearth  of  the  state  which  was  near  his  dwelling  place.  In  the 
discharge  of  the  manifold  duties,  secular  and  religious,  that 
clustered  around  the  royal  office  the  king  was  assisted  by  a  body 
of  elders,  a  representative  council  of  chiefs,  who  stood  to  the 
king  as  the  family  council  to  the  house-father  in  the  earliest 
times.  The  Roman  senate  was,  no  doubt,  an  outgrowth  and  Origin  and 


expansion  of  that  idea.    The  senators,  the  patres,  taken  from  0 

the  leading  gentes,  held  their  offices  for  life,  and,  as  the  ultimate 

1  Cic.  De  Leg.  iii.  3  ;  Liv.  iv.  7. 

3  "Patres  auctores  facti,"  Livy,  i.  22. 

*  Cf.  Schwegler,  i.  646  sq. 


56 


THE  SCIENCE  OF  JURISPRUDENCE 


Popular 
assembly 

(comitia 
curiata) 
and  its 
functions. 


Questions 
of  war 

and  peace. 


depository  of  the  supreme  power  and  of  the  sacra  connected 
with  it,  they  claimed  the  right  to  appoint  the  interrex  from 
their  own  body,1  to  be  consulted  in  the  choice  of  the  new  king, 
and  also  the  right  to  ratify  the  vote  of  the  assembled  freemen. 
Vacancies  in  their  ranks  were  filled  by  the  king  to  whom  they 
could  give  advice  and  counsel  only  when  he  wished  to  consult 
them.  Neither  the  senate  nor  the  popular  assembly  of  united 
Rome  could  meet  except  when  he  saw  fit  to  convene  them.  In 
the  earliest  days  that  assembly  (comitia  curiata),  in  which 
the  freemen  voted  by  the  curia,  just  as  in  an  American  con- 
vention the  vote  of  the  entire  body  may  be  taken  by  delega- 
tions,2 met  in  the  comitium  at  the  northeast  end  of  the  forum,3 
under  the  presidency  of  the  king,  or,  in  his  absence,  of  the 
interrex.  When  the  vote  was  put,  the  curiae  were  called  in 
turn,  and  so  the  voting  took  place  curiatim.  A  majority  of 
the  votes  of  the  curiae  determined  the  final  result,  after  the 
will  of  each  curia  had  been  declared  by  a  majority  of  its  quali- 
fied members.  Of  the  right  of  legislation,  as  that  term  is 
now  understood,  there  is  no  trace  in  the  regal  period ;  and  the 
right  of  the  assembly  even  to  elect  magistrates  seems  to  have 
been  limited  to  the  acceptance  or  rejection  of  the  king  pro- 
posed by  the  interrex.  If  it  be  true,  as  Dionysius  says,  that 
the  assembly  voted  on  questions  of  war  and  peace,  its  power 
in  this,  as  in  other  matters,  did  not  go  beyond  the  final  power 
of  saying  yea  or  nay  to  a  definite  proposition  laid  before  it. 

1  Tradition  dates  the  interregnum  from  the  first  vacancy  in  the  regal  office, 
after  the  death  of  Romulus.     Cic.  De  Rep.  ii.  12,  23 ;   Liv.  i.  17 ;   Dion.  ii.  57. 
When  such  a  vacancy  occurred,  the  auspices  under  which  the  state  had  been 
founded  "returned  to  the  patres  "  (Cic.  Ad  Brut.  i.  5.  4),  and  not  to  the  comitia 
curiata. 

2  "Each  individual  votes  in  the  group  to  which  he  belongs,  curia,  centuria, 
or  tribus,  as  the  case  may  be ;   and  it  is  by  the  majority  of  curies,  centuries,  or 
tribes  that  the  decision  of  the  assembly  as  a  whole  is  given,  the  collective  voice 
of  each  of  these  groups  being  reckoned  as  one  vote,  and  a  small  group  having  as 
much  weight  as  a  large  one."     Bryce,  Studies  in  History  and  Jurisprudence, 
p.  711. 

3  Varro,  L.L.  v.  155.     For  the  position  of  the  comitium,  see  Smith,  Diction- 
ary of  Geography,  s.v.  "Roma,"  and  Jordan,  Topog.  d.  Stadt  Rom. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  57 

The  comitia  curiata  seems  to  have  represented  the  legislative 
idea  as  to  the  primitive  family,  the  primitive  clan,  and  the 
primitive  tribe,  and  those  who  clung  to  that  idea  carried  on 
a  prolonged  struggle  against  the  progressists  who  insisted 
upon  the  expansion  of  the  government  into  a  real  city-state, 
embracing  all  the  permanent  inhabitants.     In  the  early  days 
it  was  a  part  of  the  business  of  the  assembly  to  authorize  and  Right 
attest  certain  acts,  which,  in  a  later  age,  assumed  a  more  pri- 
vate  character,  such  as  the  disposal  of  private  property  by  acts- 
will,  the  solemn  renunciation  of  family  or  gentile  sacra,  and 
adoption   (arrogatio).1    In  the  first  view  attainable  of  the 
Roman  constitution  the  fact  clearly  appears  that  the  su- 
premacy of  the  state  has  been  firmly  established  over  the  sepa-  Supremacy 
rate  communities  out  of  whose  fusion  it  arose.    Wrongdoers  state^ver 
are  punished  and  private  differences  are  settled  by  state  tri-  thf  sepa" 

rate  com- 

bunals,  while,  even  within  the  limits  of  the  family,  the  once  inanities, 
despotic  authority  of  the  house-father  is  limited  by  the  superior 
claims  of  the  state  upon  the  services  of  its  members.     And  yet, 
while  the  older  order  of  things  has  passed  away,  its  traces  linger 
in  a  form  that  clearly  indicates  that  Rome  was  not  in  the  strict 
sense  a  city-state,  but  that  it  had  in  it  something  of  a  federal  The  federal 
element,  an  element  that  clearly  appears  in  the  composition  abides! 
of  both  the  senate  and  the  assembly.2 

3.   Roman  private  law,  with  even  more  distinctness  than  Roman 
public,  emphasizes  the  fact  that  the  great  city-state  was  the  f"the  regal 
outcome  of  a  process  of  federation  in  which  the  family  was  Penod- 
the  unit  or  starting  point.     "Roman  law,  which,  next  to  the 
Christian  religion,  is  the  most  plentiful  source  of  the  rules 

1  Gaius,  ii.  101 ;  Gell.  v.  19,  xv.  27;  cf.  Cic.  Pro  Dome,  13,  14. 

2  "At  Rome  then,  as  in  Achaia,  it  was  perfectly  possible  that  those  citizens 
of  a  distant  tribe  who  appeared  in  any  particular  assembly  may  have  practically 
been   representatives  of   their  neighbors  who  stayed  away,  commissioned   to 
vote  on  their  behalf.     This  is  one  of  the  several  points  in  which  the  Roman 
commonwealth,  with  its  city  franchise  extended  over  so  large  a  territory,  has 
more  in  common  with  the  federal  than  with  the  single  commonwealths  of  Greece." 
Freeman,  Comparative  Politics,  p.  146. 


58  THE  SCIENCE  OF  JURISPRUDENCE 

governing  actual  conduct  throughout  Western  Europe,  is  de- 
scended from  a  small  body  of  Aryan  customs  reduced  to  writing 
in  the  fifth  century  before  Christ,  and  known  as  the  Twelve 
Tables  of  Rome."  1  In  order  to  comprehend  the  beginnings 
The  of  that  "small  body  of  Aryan  customs"  we  must  examine 

FamUyas  a  ^^  the  organization  of  the  primitive  family  as  a  corporation 
corporation.  jn  wnjc}1  Roman  private  law  finds  its  source.  In  early  society 
men  were  not  regarded  as  individuals  but  as  members  of  a 
family  group  or  household  whose  ruler,  priest,  and  judge  was 
Patria  armed  with  a  patria  potestas  which  reached  its  highest  develop- 
ment in  the  Roman  world.2  There  the  control  of  the  house- 
father involved  the  power  of  life  and  death  (jus  vitae  necisque),3 
as  well  as  the  right  of  uncontrolled  corporal  chastisement  over 
his  children,  whose  personal  condition  he  could  modify  at  pleas- 
ure. He  could  give  his  daughter  in  marriage ;  he  could  give 
a  wife  to  his  son;  he  could  divorce  his  children  of  either  sex; 
he  could  sell  them ;  or  he  could  transfer  them  to  another  family 
by  adoption.  Unless  the  paterfamilias  voluntarily  put  an  end 
to  it,  the  patria  potestas  lasted  as  long  as  he  lived  or  retained 
his  status.  The  marriage  of  a  son,  unlike  that  of  a  daughter 
passing  into  the  hands  of  a  husband,  did  not  release  him  from 
it,  nor  did  his  children  become  subject  to  him  so  long  as  he 
was  in  potestate.  On  the  other  hand,  his  wife  passed  in  mar- 
riage into  the  power  of  her  father-in-law,  and  their  children 
fell  under  that  of  their  paternal  grandfather,  who  was  entitled 
to  exercise  over  his  daughters-in-law  and  grandchildren  the 
same  rights  he  had  over  his  sons  and  unmarried  daughters. 

1  Maine,  Early  History  of  Institutions,  p.  9. 

2  The  Roman  jurists  claimed  that  it  was  a  right  enjoyed  only  by  Roman  citi- 
zens ("jus  proprium  civium  Romanorum  ").       Gaius,  i.  55,  189 ;  Just.  Inst.  i.  9. 
In  the  early  Empire  it  was  enjoyed  by  burgesses  of  the  Latin  municipalities  of 
Spain  and  some  other  western  provinces  who  were  not  Roman  citizens.     Lex 
Salpensana  (temp.  Domit.),  c.  22  (Brims,  p.  131). 

a  No  limitation  was  put  upon  that  power  until  the  time  of  the  Middle  Empire. 
Hadrian  punished  the  killing  of  a  son  with  deportation  (Dig.  48.  8.  5) ;  Con- 
stantine  declared  it  parricidium. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  59 

Thus  it  appears  while  the  children  were  in  public  life  on  an 

equality  with  the  house-father,  in  private  life,  and  so  long  as 

the  potestas  lasted,  were  so  subordinate  to  him  that,  according 

to  the  letter  of  the  law,  they  were  little  better  than  his  slaves-  Children  but 

All  their  earnings  were  his  ;  they  could  have  nothing  of  their  than  slaves. 

own,  although  it  was  quite  common  when  they  grew  up  for 

him  to  give  them  peculia,  "cattle  of  their  own,"  to  manage  for 

their  own  benefit  as  de  facto  theirs,  but  de  jure  his.     And  yet  House- 

the  fact  remains  that  the  house-father  was  simply  the  head  of  " 


the  family  corporation  whose  possessions  he  held  simply  for  family 

'  r  J  corporation. 

his  children  and  kindred.  The  great  rights  and  duties  with 
which  he  was  endowed  were  in  contemplation  of  law  quite  as 
much  those  of  the  collective  body  as  his  own.1  The  family 
was  a  religious  as  well  as  a  natural  organism  held  together 
by  the  common  worship  which  its  members  owed  to  the  spirits 
of  their  ancestors.  Hence  the  principles  that  regulated  mar- 
riage, and  the  relation  of  parents  to  children  and  devolution 
of  property  had  a  religious  basis,  and  were  precepts  of  religion 
no  less  than  rules  of  law.  With  the  early  Romans,  as  with  the 
Hindus  and  the  Greeks,  marriage  was  a  religious  duty  a  man 
owed  alike  to  his  ancestors  and  to  himself.2  The  prime  and 
sacred  duty  of  the  house-father  was  to  perpetuate  the  family  Religious 
by  natural  or  artificial  means.  Anciently  marriage  might  be  petuate  Ft!*" 
contracted  according  to  Roman  usage  by  the  religious  cere- 
mony known  as  confarreation  ;  3  by  the  higher  form  of  civil 
marriage  known  as  coemption;  and  by  the  lower  form  known  as 
The  rights  thus  acquired  by  the  husband  over  the 


1  Cf.  Maine,  Ancient  Law,  pp.  131  sq.  ;  Sohm,  Institutes,  pp.  355,  385,  386-389, 
390;   Dion.  Hal.  ii.  15,  26,  27  (Bruns,  p.  7);  Clark,  Early  Roman  Law,  pp.25, 
31,  125. 

2  Cf.  Fustel  de  Coulanges,  La  cite  antique,  pp.  41-54. 

*  A  woman  married  by  the  ceremony  of  confarreatio,  peculiar  to  the  patri- 
cians, became  a  partner  in  the  property  and  sacra  of  her  husband  —  dvSpl 
Kotvuvbv  dira»Twi'  -^pijfjAruv  re  icaZ  2epwi>  (Dion.  ii.  25). 

«  See  Bernhoft,  ZS.  /.  vergleichende  R.  W.  viii.  197,  198  (1888),  as  to  the 
origin  and  growth  of  the  free  marriage  among  the  Romans. 


60 


THE  SCIENCE  OF  JURISPRUDENCE 


Status  of 
house- 
mother. 


Her  dowry. 


Adoption. 


Patria  potes- 
tas  did  not 
extend  to 


cum. 


person  and  property  of  his  wife  were  acquired  not  as  husband 
but  as  father.  By  either  of  the  three  forms  of  marriage  the 
woman  passed  in  manum  viri;  that  is,  she  became  in  law  the 
daughter  of  her  husband,  and  was  included  in  his  patria  po- 
testas.  As  the  Greek  called  his  wife  the  house-mistress  (Se- 
(nroiva),  so  the  Roman  spoke  of  his  as  the  mater  familias, 
the  house-mother,  who  was  treated  as  the  husband's  equal.1 
If  the  wife  had  any  property  of  her  own,  it  passed  to  the  hus- 
band as  a  matter  of  course ;  if  she  had  none,  her  paterfamilias 
gave  her  a  dowry  (dos) 2  which  shared  the  same  fate.  If  a 
man  saw  his  sons  go  to  the  grave  before  him,  or  if  his  mar- 
riage was  fruitless,  it  became  his  duty  to  prevent  the  extinction 
of  the  family  by  the  process,  so  familiar  in  India  and  Greece, 
known  as  adoption  —  a  fiction  so  closely  simulating  the  reality 
of  kinship  that  neither  law  nor  opinion  made  the  slightest 
difference  between  a  real  and  an  adoptive  connection.  No 
adoption  was  allowed  to  take  place,  however,  without  due  pro- 
vision for  the  sacra  of  the  family  from  which  the  adoptive  son 
was  transferred.  If  it  was  a  pater  familias  who  was  adopted, 
the  process  was  called  adrogatio;  if  it  was  a  filius  familias,  it 
was  simply  adoptio.  In  connection  with  this  domestic  des- 
potism the  maxim  of  Roman  law  must  be  remembered  that 
the  patria  potestas  did  not  extend  to  the  jus  publicum.3  After 
the  city-state  was  formed  every  man  is  first  of  all  a  citizen; 
next  he  is  a  member  of  a  gens,  house,  or  clan ;  and  lastly  he 
is  a  member  of  his  family.  Father  and  son  voted  together 
in  the  city,  and  fought  side  by  side  in  the  field  where  the  son, 
as  general,  might  happen  to  command  the  father.  As  a  mag- 


1  See  Ihering,  Vorgeschichte  der  Indoeurop'der,  pp.  411  sq.,  as  to  Aryan  in- 
fluence on  the  early  Roman  matrimonial  relation. 

3  As  to  the  right  of  the  wife  to  claim  back  the  dos,  see  Bechmann,  Das  Ro- 
mische  Dotalrecht,  2  vols.,  1863,  1867 ;  Czyhlarz,  Das  romische  Dotalrecht,  1870. 

*  "Lastly,  there  was  the  principle  that  the  paternal  power  cannot  interfere 
with  the  jus  publicum.  It  is  a  principle  that  applies  both  to  persons  and  to 
property."  Greenidge,  Roman  Public  Life,  p.  23. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  61 

istrate  he  might  be  called  upon  to  pass  upon  his  father's  con- 
tracts and  punish  his  delinquencies. 
It  is  difficult  to  grasp  the  principles  by  which  Roman  law  Agnatic 

•   .1        i<  ,'  e  Ai       r        M  ,  •  succession. 

prevented  the  dissolution  of  the  family  as  a  corporation  upon 
the  death  of  the  house-father,  primogeniture  not  existing  in 
any  form.     As  the  headship  did  not  descend  to  the  eldest  son, 
to  whom  did  the  house-father's  authority  and  the  family 
estate  descend?    The  rule  was  that  both  descended  to  all 
persons  agnatically  connected  with  him;  that  is,  to  all  who 
had  been  under  his  paternal  power  or  who  might  have  been 
under  it  if  their  lineal  ancestor  had  lived  long  enough  to  exer- 
cise it.1    The  group  of  agnates  succeeded  as  a  single  unit,  Group  of 
and  the  assets  were  afterwards  divided  among  them  in  a  sepa-  succeeded 
rate  legal  proceeding.     When  the  succession  was  ab  intestate,  **  a  umt> 
and  the  group  consisted  of  the  children  of  the  deceased,  each 
took  an  equal  share  of  the  property.     The  whole  law  of  tes- 
tamentary and  intestate  succession  circles  around  the  fact  A  man 
that  a  man  lives  on  in  his  heirs.2    There  is  abundant  evidence  i^hLTeirs 
in  archaic  law  to  indicate  that  what  passed  from  the  testator  to 
the  heir  was  the  family;  that  is,  the  aggregate  of  rights  and 
duties  contained  in  the  patria  potestas  and  growing  out  of  it. 
The  foundation  of  agnation  was  not  the  marriage  of  father  Founda- 
and  mother,  but  the  authority  of  the  father ;  where  the  potes-  agnation 
tas  ended  kinship  ended.    Therefore  a  son  emancipated  by  ^ 
his  father  lost  all  rights  of  agnation.     If  the  question  be  asked 
who  were  the  agnates,  the  answer  is  that  they  were  all  the  cog- 
nates who  traced  their  common  connection  exclusively  through 
males  (per  sexum  virileiri).     Hence  the  legal  maxim,  Mulier  Mulier 
est  finis  familiae.    A  female  name  closes  the  branch  of  the  /amtZio* 
genealogy  in  which  it  occurs.     To  the  agnates  thus  obtained 
must  be  added  all  persons  who  had  been  brought  into  the 

1  "The  agnates  were  that  assemblage  of  persons  who  would  have  been  under 
the  patriarchal  authority  of  some  common  ancestor,  if  he  had  lived  long  enough 
to  exercise  it."     Maine,  Early  History  of  Institutions,  p.  106. 

2  Maine,  Ancient  Law,  pp.  144,  184,  185,  220. 


THE  SCIENCE  OF  JURISPRUDENCE 


Later 
rule  of 
cognation. 


Its  essence 
community 
of  blood. 


family  by  the  artificial  process  of  adoption.1  Upon  the  death 
of  the  house-father  his  paternal  powers  and  possessions  passed 
to  his  agnates  thus  ascertained.  When  the  pater  familias 
died,  his  sons  and  daughters  who  had  remained  in  potestate 
and  his  grandchildren  by  a  predeceased  son  instantly  became 
sui  juris,  whereas  grandchildren  by  a  surviving  son  simply 
passed  from  the  potestas  of  their  grandfather  into  that  of  their 
father.2  When  it  became  necessary  to  substitute  the  guardian- 
ship of  tutors  (tutela)  for  the  extinct  potestas,  it  was  only  pupil 
males  who  required  them,  and  their  office  came  to  an  end  when 
puberty  was  attained.3  While  the  early  law  recognized  agna- 
tion, chiefly  if  not  entirely,  the  praetors  early  laid  hold  on  cog- 
nation as  the  natural  form  of  kinship,  and  spared  no  pains  in 
purifying  their  system  from  the  older  conception.  The  older 
ideas  and  habits  of  the  people  yielded,  however,  very  slowly, 
and  it  was  not  until  the  reforming  hand  of  Justinian  had  swept 
away  nearly  all  that  remained  of  the  ancient  rules  of  succession, 
and  put  a  plain  and  logical  system  in  their  place,  that  the 
process  was  completed.  The  essence  of  cognation  was  not  mere 
community  of  household,  but  community  of  blood.  As  in  the 
earlier  system  the  father  represented  the  agnatic  principle, 
so  in  the  latter  the  mother  represented  the  cognatic.  "The 
family  of  the  jus  gentium  is  the  cognatic  family.  .  .  .  The 
civil  law  conception  of  a  family  was  finely  displaced  by  the  con- 
ception of  a  family  as  recognized  by  the  jus  gentium.11 4 


1  As  to  who  were  and  were  not  agnati,  see  Sohm,  Institutes,  pp.  125,  356,  358. 
Agnatio  is  contrasted  with  cognatio,  at  pp.  357—358. 

2  See  Ihering's  treatment  of  the  patria  potestas  as  a  non- Aryan  institution 
in  his  Vorgeschichte  der  Indoeuropder,  pp.  52-54. 

*  Females,  no  matter  what  their  age,  remained  under  guardianship  until 
they  had  passed  by  marriage,  in  manum  mariti.  Gaius  (i.  90)  says  it  is  not  easy 
to  assign  any  sufficient  reason  for  the  perpetual  tutory  of  females.  The  reason 
originally  was,  no  doubt,  to  put  it  beyond  the  power  of  a  woman  to  dispose  of 
her  part  of  the  family  estate  to  the  prejudice  of  the  gens,  without  its  consent. 

4  Sohm,  Institutes,  pp.  357,  443.  The  final  reform  of  the  law  of  intestate 
succession  was  not  accomplished  by  the  Corpus  Juris,  but  by  the  118th  Novel, 
with  its  supplement,  the  127th  Novel. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  63 

The  practical  expedient  employed  to  prevent  the  inevitable  TWO  kinds 
splitting  up  of  the  family  through  the  application  of  the  law        *11 
of  agnatic  succession  was  the  making  of  a  will,1  a  power  which 
seems  to  have  been  unknown  to  every  original  society  except 
the  Roman.      The  most  ancient  was  the  patrician  form  of 
testament  —  the  testamentum  comitiis  calatis  —  executed  in 
the  comitia  curiata,  which  were  summoned  (calatd)  twice  a  year 
for  this  purpose.2    Thus  the  comitia  calata 3  was  simply  the 
comitia  curiata  assembled  for  private  business.     There  is  no  c 
warrant  for  saying  that  a  testament  thus  executed  was  an  act 
of  private  legislation  and  was  permitted  by  the  assembled 
burgesses.    The  gathering  was  perhaps  merely  a  form,  and 
the   persons   assembled  may  have  acted  only  as  witnesses. 
The  second  kind  of  public  will  was  the  military  testament  (in  Testament 
procinctu),  probably  made  in  the  presence  of  a  few  comrades  inpro 
on  the  eve  of  battle.     It  is  likely  that  such  a  formal  act  could 
have  been  performed  only  in  the  great  gathering  of  the  exer- 
citus  in  the  Campus  Martius,  a  gathering  which  came  to  be 
known  as  the  comitia  centuriata.     It  is  of  these  that  Gaius 
says :    "  But  originally  there  were  two  kinds  of  testaments, 
for  they  were  made  either  before  the  calata  comitia,  which 
were  held  twice  yearly  for  the  purpose  of  making  testaments, 
or  they  were  made  in  procinctu;  that  is,  when,  on  account  of 
war,  men  were  just  going  into  battle;    for  an  equipped  and 
armed  host   is   called  procinctus."  *    More   important   than 
either  is  the  ancient  plebeian  will  which  seems  to  have  gained  The  ple- 
at Rome  all  the  popularity  the  testament  submitted  to  the  beian  wlU" 
comitia   calata  appears  to   have  lost.     In  its  earliest  form 
it  seems  to  have  been  a  conveyance  inter  vivos,  which  was  a  A  convey- 
complete  and  irrevocable  alienation  of  the  testator's  family 


ance  inter 
vivos. 


1  "The  institution  which,  next  to  the  contract,  has  exercised  the  greatest 
influence  hi  transforming  human  society."     Maine,  Ancient  Law,  p.  188. 

2  Gell.  xv.  27 ;   Ulpian,  Reg.  20.  2. 

*  As  to  the  nature  of  comitia  calata,  see  Mommsen,  Romische  Staatsrecht,  iii.  39. 
«  ii.  101. 


THE  SCIENCE  OF  JURISPRUDENCE 


Key  to  its 
character- 
istics. 


Validity 
confirmed 
by  the 
Twelve 
Tables. 


and  substance  to  the  guardianship  of  the  one  he  meant  to  be 
his  heir.  While  the  strict  rules  of  Roman  law  may  have  al- 
ways permitted  such  an  alienation,  it  could  hardly  have  had 
a  posthumous  effect  without  the  formal  assent  of  the  patrician 
assembly  in  which  the  plebeian  had  no  place.  If  the  inability 
to  have  his  will  read  in  the  comitia  calata  once  deprived  the 
plebeian  of  the  testamentary  privilege,  it  was  removed  by 
that  provision  of  the  Twelve  Tables  which  decreed:  Uti 
legassit  super  pecunia  tutelave  suae  rei,  ita  jus  esto.1  The  key 
to  all  the  characteristics  of  the  plebeian  will  lies  in  its  descent 
from  the  ancient  Roman  conveyance,  mancipium,  a  proceed- 
ing from  which  modern  society  derived  two  great  institutions, 
the  contract  and  the  will.  By  the  latter  the  testator,  in  the 
presence  of  five  witnesses  and  the  libripens,  transferred  the 
whole  of  his  patrimony  (familia),  into  the  custody  and  guar- 
dianship of  a  person  called  "the  purchaser  of  the  family" 
(familiae  emptor).  The  vendor  made  a  formal  announcement 
of  the  purport  of  the  sale,  and  the  buyer,  as  he  paid  the  single 
copper  coin  for  the  patrimony,  repeated  the  same  form  of 
words,  "  Let  my  custody  and  guardianship  of  your  patrimony 
be  purchased  by  this  coin  to  the  effect  that  you  may  make  a 
legal  testament  in  accordance  with  public  law."  2  The  second 
stage  was  reached  when  the  form  of  instruction  (nuncupatio) 
uttered  by  the  vendor  was  given  absolute  validity  by  that 
clause  in  the  Twelve  Tables  declaring :  Cum  nexumfaciet  man- 
dpiumque,  uti  lingua  nuncupassit  ita  jus  esto.3  The  last  stage  in 
the  history  of  the  civil  testament  is  reached  when  the  testator  is 
permitted  to  present  a  document  to  the  witnesses  of  the  man- 
ucuption  with  these  words :  "  These  waxen  tablets  contain  my 
will  and  bequest;  I  ask  you,  Quirites,  for  your  testimony."  4 

1  "A  law  which  can  hardly  have  had  any  other  object  than  the  legalization 
of  the  plebeian  will."  Ancient  Law,  p.  196. 

a  Gaius,  ii.  104. 

*  Cf .  Sohm,  Institutes,  p.  450 ;  Greenidge,  Roman  Public  Life,  p.  29. 

4  Gaius,  ii.  104.  "Haec  ita,  ut  in  his  tabulis  cerisque  ecripta  sunt,  ita  do, 
ita  lego,  ita  tester,  itaque  vos,  Quirites,  testimonium  mihi  perhibetote. " 


EXTERNAL  HISTORY  OF  ROMAN  LAW  65 

As  the  system  of  family  law  just  outlined  had  its  origin  in  a  Relation  of 
kind  of  corporation,  which  was  a  religious  as  well  as  a  natural  religion, 
organism  held  together  by  a  common  worship,  it  is  not  strange 
that  law,  which  everywhere  begins  with  custom,  should  be  found 
at  the  outset  in  close  affinity  with  religion.     Many  of  the  cus- 
toms which  form  law  are  bound  up  with  worship,  because  the 
relations  they  regulate  depend  upon  the  idea  it  embodies. 
The  first  element  to  be  noted  in  the  Roman  composite  existing 
in  primitive  times,  when  religion  and  law  were  not  distinguished,  Precepts 
is  fas  1  —  the  will  of  the  gods,  embodied  in  rules  regulating  °      e  fa8' 
not  only  ceremonials  but  the  conduct  of  all  men  as  such. 
Thus  it  was  commanded  that  faith  should  be  kept  even  with 
an  enemy  when  a  sworn  promise  had  been  made  to  him; 
thus  it  was  forbidden  that  war  should  be  undertaken  without 
the  prescribed  fetial  ceremonies;   thus  murder  was  punished 
because  it  was  the  taking  of  a  god-given  life.     When  an 
offense  against  any  of  these  rules  was  inexpiable,  the  offender 
was  excommunicated  and  outlawed,  and,  in  that  way,  the  pre- 
cepts of  the  fas  approached  very  closely  to  laws,  because  a 
violation  of  them  was  visited  with  punishments  none  the  less 
effective  because  religious  rather  than  secular.2     Mommsen 
describes  the  leges  regiae  as  mostly  rules  of  the  fas,  which  were  Leges 
of  interest  not  merely  for  the  pontiffs  but  for  the  people,  who  regw*' 
should   know   the   risks   they  incurred   in   violating  them.8 
Within  the  wide  circle  of  conceptions  thus  defined  by  fas  were 
inclosed  the  set  of  ideas,  probably  of  narrower  range,  grouped 
under  the  name  jus,  a  word  of  many  meanings  in  Roman  law,  jus  defined, 
and  one  as  to  whose  derivation  there  is  considerable  contro- 

1  Ihering,  Geist,  vol.  i.    §§  18,  18  a;  Voigt,  XII.    Tafeln,  vol.  i.  §§13,  44; 
Esmarch,  Romische  Rechtsgesch.,  3d  ed.,  1888,  §  11. 

2  "The  notion  of  crime  and  its  separation  from  so-called  civil  injuries,  on  the 
one  hand,  and  from  sins  or  purely  moral  offenses,  on  the  other,  has  a  peculiarly 
sensitive  dependence  on  the  ethical  circumstances   of  a  people  at  any  given 
epoch."     Amos,  A  Systematic  View  of  the  Science  of  Jurisprudence,  p.  61. 

1  Romische  Staatsrecht,  ii.  1.  41.      See  also  Bruns,  Fontes,  pp.  1  ff. ;    Voigt, 
Uber  die  leges  regies  (1876). 
F 


66 


THE  SCIENCE  OF  JURISPRUDENCE 


Difference 
between  fas 
and  jus. 


Custom 
rather  than 
statute 
main  factor 
of  the  jus 
of  regal 
period. 


Jus 

Quiritium. 


versy.1  If  M.  Bre'al  is  correct  in  identifying  it  with  jos, 
jaos,  or  jaus  of  the  Vedas,  and  the  jaes  of  the  Zend-Avesta, 
which  he  interprets  as  "the  divine  will,"  light  is  shed  upon  the 
interpretation  of  the  words  addressed  by  the  presiding  magis- 
trate to  the  assembled  comitia  in  asking  them  whether  they  as- 
sented to  the  law  proposed  by  him  —  Velitis,  jubeatis,  Quirites, 
etc.,  "  Is  it  your  pleasure,  Quirites,  and  do  you  hold  it  as  divine 
will,  that,"  and  so  on.  As  legislation  by  the  comitia  of  the 
curies  and  centuries  was  regarded  as  a  divine  office,  Breal's 
interpretation  finds  some  support  in  the  maxim,  Vox  populi, 
vox  Dei.  If  it  be  a  sound  one,  the  only  difference  between  fas 
and  jus  was  that  the  will  of  the  gods,  embodied  in  both,  was 
in  the  one  declared  by  inspired  and  in  the  other  by  human 
agency.2  But,  in  the  initial  stages  of  society,  religion  must  not 
be  conceived  of  as  the  dominant  power  which  gives  birth  to  the 
law.  In  the  observance  of  all  the  established  customs  and  in 
the  performance  of  all  the  prescribed  ceremonies,  that  which  is 
pleasing  to  the  gods  is  not  separated,  even  in  thought,  from 
what  is  beneficial  to  the  community.3  While  jus  might  be  the 
result  either  of  traditional  and  inveterate  custom  (jus  moribus 
constitutum)  or  of  statute  (lex),  it  seems  to  be  clear  that  custom 
rather  than  statute  was  the  main  factor  of  the  jus  of  the  regal 
period.  It  is  universally  admitted  that,  in  the  early  period, 
the  main  body  of  Roman  law  was  customary,  and  that  at  the 
outset,  the  customs  not  only  of  the  different  races  but  those  also 
of  the  different  gentes  were  far  from  uniform.  It  is  reason- 
able to  believe  that,  after  passing  through  a  gradual  process 
of  approximation,  they  were,  in  the  course  of  time,  consoli- 
dated into  a  general  Jus  Quiritium,  the  law  of  the  spear- 


1  In  later  times  we  have,  as  opposed  to  fas,  the  jus  (Greek  dlicaiov).  Leist, 
Altarisches  Jus  Gentium  (1889),  pp.  3,  4.  The  words  fas  and  jus  are  often 
contrasted  by  non-legal  writers,  e.g.  Liv.  vii.  31 ;  Virg.  Aen.  ii.  157. 

3  Cf.  Muirhead,  Roman  Law,  pp.  15-19 ;  Schmidt  in  Mommsen,  Romisches 
Staatsrecht,  iii.  310,  notes  1,  2. 

1  Bryce,  Studies  in  History  and  Jurisprudence,  p.  642. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  67 

men.  The  spearmen  were  the  Quirites,  the  members  of  the 
gentile  houses  organized  in  their  curies,  primarily  for  military 
and  secondarily  for  political  purposes.  From  their  ranks  the 
king  drew  his  council  of  elders;  they  alone  could  contract  a 
lawful  marriage  and  make  a  testament  ;  they  alone  could  con- 
sult the  gods  through  the  medium  of  the  auspicia,  and  partici- 
pate in  the  services  offered  to  the  tutelary  deities  ;  they  alone 
could  take  part  in  the  assembly  of  warriors  (comitia  curiata)  ; 
in  a  word,  they  alone  were  entitled  directly  to  Rome's  peculiar 
institutions.1  In  the  effort  to  ascertain  the  primary  forms  of 
those  institutions  the  fact  must  be  borne  in  mind  that  our 
knowledge  of  early  Roman  customs,  at  least  until  after  the 
Twelve  Tables,  cannot  be  based  upon  direct  historical  evidence. 
After  authentic  history  begins,  inferences  can  only  be  drawn 
as  to  the  structure  of  the  primitive  system  from  traces  and 
survivals.  The  one  part  of  the  statement  of  Pomponius  which 
can  be  accepted  without  reserve  is  that  originally  the  laws  were 
far  from  definite.2 

Under  such  conditions  it  is  not  reasonable  to  look  for  any-  oimes, 
thing  like  a  clear  line  of  demarcation  between  crimes,  offenses,  ancTav 
and  civil  injuries  in  the  regal  period.     It  is  difficult  to  predicate  mJunes 
of  one  offense  that  it  was  a  sin,  of  another  that  it  was  a  crime, 
and  of  a  third  that  it  was  but  a  civil  injury  to  an  individual. 
If  the  boundary  between  civil  and  criminal  jurisdiction  existed 
at  all,  it  was  very  dimly  defined.3    Of  the  course  of  justice, 
whether  in  civil  or  criminal  matters,  before  the  time  of  Ser- 
vius,  we  know  little  that  is  clear  or  coherent.    Originally 


1  Cf  .  Genz,  Das  Patricische  Rom,  pp.  1  sq.,  Berlin,   1878;    Ihering,    Geist, 
vol.   i.    §  14;    Mommsen,    Romische    Staatsrecht,   iii.    13    sq.  ;     Carle,   Origini, 
pp.  17  sq. 

2  "In  the  early  years  of    our  city,   the  people  lived  for  a  time  without 
actual  statute  or  any  definite  law."      Pompon,  lib.  sing.  Enchiridii,   in  Dig. 
i.  2,  1-3. 

8  Cf.  Rein,  Das  Criminalrecht  der  Romer  (Leipzig,  1844),  pp.  24  sq.  ;  Clark, 
Early  Roman  Law,  pp.  34  sq.  ;  Abegg,  De  antiquissimo  Romanorum  jure  crimi- 
nali  (Konigsberg,  1823),  pp.  24  sq. 


68 


THE  SCIENCE  OF  JURISPRUDENCE 


Public 
prosecu- 
tions. 


King 
as  judge. 


Vengeance 

and 

self-help. 


crimes  must  have  been  punished  within  the  family ;  and,  even 
after  the  state  had  established  its  authority  over  its  members, 
the  house-father,  aided  by  a  council  in  cases  of  importance, 
continued  to  be  judge  within  it,  his  jurisdiction  sometimes 
excluding  that  of  the  state,  at  others  concurring  with  it.1 
There  seems  to  have  been  no  machinery  for  public  prosecutions 
except  in  the  case  of  treason  and  murder,  first  because  treason 
was  essentially  a  state  offense,  and  second  because  it  was  soon 
deemed  expedient  for  the  state  to  repress  the  blood  feud,  so 
apt  to  disturb  public  order  when  friends  and  neighbors  ap- 
peared to  defend  the  alleged  assassin.2  Such  criminal  juris- 
diction as  the  state  did  exercise  was  vested  in  the  king.  "The 
king  as  judge;  sometimes  availing  himself  of  the  aid  of  a 
'  council ' ;  sometimes,  perhaps,  in  cases  of  minor  importance, 
delegating  his  judicial  powers  to  individual  'judges';  aided, 
in  his  quest  of  capital  crimes,  by  the  questores  parricidii; 
appointing  at  his  pleasure,  in  cases  of  treason,  the  extraor- 
dinary duumviri;  allowing,  though  perhaps  not  bound  to  do 
so,  an  appeal  from  the  latter  to  the  assembled  burgesses,  — 
this  is  all  that  we  can  recognize  with  any  degree  of  confidence." 3 
As  in  all  archaic  systems  the  rights  of  vengeance  and  self-help 
were  deeply  rooted.  A  thief  caught  in  the  act  at  night  might 
be  slain,  and  when  caught  in  the  act  by  day  might  be  sold  as  a 
slave.  Such  self-help  was  not  limited,  however,  to  self-de- 
fense in  the  presence  of  imminent  danger  or  necessity ;  it  was 
often  employed  as  an  active  measure  for  the  redress  of  wrongs 
already  completed.  The  words  of  style  used  in  the  sacramen- 

1  See  Voigt,  XII.  Tafeln,  vol.  ii.  §  94.     And  yet  we  must  not  forget  that 
"at  the  earliest  period  of  which  we  have  any  knowledge,  the  community  was  in 
existence  as  well  as  the  family.     Of  any  regular  parental  judication  we  must 
agree  with  Mommsen  that  there  is  not  a  trace  to  be  found."     Clark,   Early 
Roman  Law,  p.  34,  citing  Mommsen,  History  of  Rome,  i.  11.  157-158  tr. 

2  As  to  murder  (parricidium)  in  the  early  law  of  Rome,  see  Osenbriiggen,  Das 
altromische  Paricidium   (Kiel,  1841),   and  review   by  Doltmann  in  Richter's 
Krit.  Jahrb.,  vol.  xi.  (1842),  pp.  144  sq. 

*  Clark,  Early  Roman  Law,  p.  87,  citing  Heineccius  Elementa  Juris  Civilis, 
§  136. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  69 

tal  real  action  clearly  indicate  that  there  was  a  time  when  all 
questions  of   quiritarian  right,  such  as  disputes  concerning 
property  and  inheritances,  were  settled  between  the  contend- 
ing parties,  supported  by  their  clansmen  and  friends,  with  the 
spear  as  the  arbiter.1    After  the  firm  establishment  of  the 
authority  of  the  state,  it  appears  that  this  procedure  by  Spearas 
battle2  was  at  a  very  early  day  superseded  by  a  submission 
of  such  questions  of  right  to  the  college  of  pontiffs,  of  which  College  of 
the  king  was  the  official  head.3    As  their  functions  were  sacred,  P°I 
the  pontiffs  could  only  acquire  jurisdiction  over  a  purely  civil 
controversy  through  the  engrafting  of  a  sacred  element  which 
was  added  by  requiring  each  of  the  parties  to  verify  his  conten- 
tion by  an  oath,  whose  truth  or  falsity  constituted  the  osten- 
sible issue.     Under  that  form  a  finding  was  made  on  the  real 
issue,  and  the  party  in  whose  favor  it  was  pronounced  was  free 
to  make  it  effectual  by  self-help,  if  necessary.4    Did  Servius  Servian 
Tullius  substitute  for  king  and  pontiffs  a  numerous  court  of  r 
citizens  to  try  questions  of  quiritarian  right  upon  his  submis- 
sion ?    If  he  did,  was  it  his  intention  that  the  judges  should  be 
selected  from  among  the  patrician  citizens  for  each  case  as  it 
arose,  or  was  it  a  collegiate  court  or  courts  that  he  established, 
in  which  the  judges  had  an  official  character  ?     Dionysius  says 
that  Servius  drew  a  line  of  separation  between  public  and  pri- 

1  The  praetor  commanded  the  parties  to  go  to  the  ground  suis  utrisque  super- 
stitibiis  praesentibus.     Cf.  Cicero  (Pro.  Mur.  xii.  26).     "Sicut  dixi,  ecce  tibi, 
vindictam  imposui."     Gaius,  iv.  16. 

2  Trial  by  battle  in  English  law  was  continued  down  to  1819,  when  it  was 
abolished   by  statute  59   Geo.  III.  c.  46.      See  case  of  Ashford  v.  Thornton 
(1818),  1  Bar.  and  Aid.  405.     The  case  was  argued  by  Mr.  Chitty  and  Sir  N. 
Tindal,  and  the  great  authority  relied  on  was  Bracton. 

1  On  early  Roman  law,  see  the  work  of  P.  Jors,  Romische  Rechtswissenschaft 
zur  Zeit  der  Republik  (1888). 

4  As  to  the  nature  of  the  legis  actio  sacramento,  see  Asverus,  Die  legis  actio 
sacramenti,  Leipzig,  1837 ;  Stintzing,  Verhaltniss  d.  I.  a.  sacramento  Verfahren 
durch  sponsio  praejudicialis,  Heidelberg,  1853 ;  Huschke,  Die  multa  u.  d.  zum 
sacramentum,  Leipzig,  1874  ;  E.  Roth,  in  the  Z.  d.  Sav.Stift.,  vol.  iii.  (1882),  R.A., 
pp.  121  sq. ;  Fioretti,  Legis  actio  sacramento,  Naples,  1883;  Ihering,  "Reich  u. 
Arm  im  altrom.  Civilprozess,"  in  his  Schurz  u.  Ernst,  pp.  175  sq. ;  Sohm, 
Institutes,  p.  153 ;  Maine,  Ancient  Law,  p.  46. 


70 


THE  SCIENCE  OF  JURISPRUDENCE 


Habit  of 

intrusting 

judicial 

office  to 

private 

citizen. 


vate  judicial  processes,  and  that,  while  he  retained  the  former 
in  his  own  hands,  he  referred  the  latter  to  private  judges,  and 
regulated  the  procedure  in  cases  brought  before  them.1  Such 
a  substitution  for  king  and  pontiffs  of  a  numerous  court  of  citi- 
zens to  try  questions  of  quiritarian  right  seems  quite  in  har- 
mony with  the  general  spirit  of  the  reforms  of  Servius,  who,  by 
enormously  increasing  the  number  of  citizens  entitled  to  that 
right,  multiplied  the  sources  of  such  future  disputes  as  would 
have  to  be  determined  by  such  a  tribunal  or  tribunals.2  By 
their  judgment  not  mere  matters  of  personal  dispute  had  to 
be  determined,  but  a  law  had  to  be  built  up  which  could  be  of 
general  and  permanent  application.  There  were,  however, 
many  cases  requiring  judicial  assistance  involving  no  question 
of  quiritarian  right,  no  general  principal  of  law,  simply  per- 
sonal claims,  mere  disputes  or  differences  as  to  facts,  which 
could  be  well  decided  by  a  single  judge.  In  order  to  provide 
for  cases  of  that  character,  the  unus  judex  was  appointed  by 
the  king  as  his  commissioner  in  each  case  as  it  arose.3  To 
that  habit  of  intrusting  the  judicial  office  to  a  private  citizen, 
chosen  for  each  individual  case,  and  acting  on  a  commission 
from  the  praetor,  instead  of  to  officials  trained  for  the  pur- 
pose, flowed  results  which  contributed  more  perhaps  than  any 

1  Dion.  Hal.  iv.  25. 

2  "Thus  we  should  a  priori  arrive  at  the  institution  of  some  other  court  besides 
the  king's,  without  the  testimony  of  Dionysius,  as  a  simple  matter  of  necessity. 
.  .  .  The  best  modern  authorities  admit  the  existence  of  the  indices  under  the 
king's,  whether  their  institution  is  to  be  attributed  to  Servius  or  not."    Clark, 
Early  Roman  Law,  p.  100,  citing  Walter  (trad,  par  Laboulaye),  Procedure  civile 
chez  les  Romains,  ch.  1 ;  Ortolan,  Histoire  de  la  Legislation  Romaine,  §§  117, 162; 
Zumpt,  Criminalrecht.  Absch.  1.  4. 

*  Wlassak  contends  that  originally  in  legis  actiones  the  trial  commonly  took 
place  before  a  unus  judex,  and  that  the  centumviral  and  decemviral  courts 
did  not  come  into  existence  until  much  later  than  the  Twelve  Tables,  in  accor- 
dance with  the  statement  of  Pomponius.  Rom.  Processgesetze,  i.  131  sq.  It 
seems  to  be  clear  that  in  the  later  Republic  the  decemviri  stlitibus  judicandis 
were  chiefly  engaged  in  trying  actions  affecting  personal  liberty.  Sohm,  In- 
stitutes, p.  150,  note  2.  All  sworn  judges,  including  the  decemviri,  stood  to  the 
parties  solely  in  the  position  of  private  individuals  (judex  privatus),  and  not  in 
the  position  of  magistrates  equipped  with  compulsory  powers.  Pernice,  ZS. 
der  Sav.  St.  v.  48. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  71 

other  one  cause  to  make  Roman  law  what  it  is  and  has  been. 
Such  was  the  beginning  of  a  system  that  bore  such  won- 
drous fruit,  and  finally  displaced  altogether  the  more  imposing 
centumviral  and  decemviral  courts.1     Dionysius  also  credits 
Servius  with  the  authorship  of  more  than  fifty  enactments,  Servian 
concerning  contracts  and  crimes  2  which,  he  says,  were  sub-  ^£,  ^!. 8 
mitted  to  and  approved  by  the  curies.    While  a  few  such  tr?ctsand 

J  crimes. 

laws  may  have  been  enacted  by  Servius,  either  with  or  without 
the  assistance  of  the  curies,  it  is  probable  that  the  majority 
of  those  imputed  to  him  were  simply  restatements  in  a  dog- 
matic form  of  customary  laws  for  the  use  of  the  private 
judges  in  civil  cases,  whom  he  is  said  to  have  instituted. 

4.  Having  heretofore  outlined  the  political  and  legal  rights  Plebeians 
of  the  patrician  body,  whose  members  dominated  and  con-  regaiperiod. 
trolled  the  early  Roman  state,  the  process  must  be  indicated 
through  which  the  clanless  classes,  known  as  plebeians,  fought 
their  way  from  a  depressed  condition  to  one  of  political  and 
legal  equality  with  the  patriciate.  Putting  aside  the  guesses 
of  the  antiquarians  as  to  the  original  sources  from  which  the 
clanless  classes  were  drawn,3  it  may  be  said  that  the  plebeians 
(plebs,  pkbii)  represented  that  part  of  the  free  community 
which  stood  beyond  the  pale  of  the  patres,  as  the  complement 
of  that  order.  It  is  generally  assumed  that  at  a  very  early 
stage  in  the  history  of  the  city  all  plebeians  were  in  a  half- 

1  Pomponius  alludes  to  the  court  of  the  centumviri  and  to  that  of  the  decem- 
viri stlitibits  judicandis,  and  Cicero  often  refers  to  centumviral  cases  and  to  the 
centumviral  court.     While  by  the  time  of  Gaius  (iv.  16)  only  such  matters 
seem  to  have  been  brought  before  the  latter  as  involved  questions  of  right  to 
an  inheritance   of  the  jus  civile,  the  spear,  the  emblem   of   quiritarian   right 
generally,  was  s  ill  its  ensign.     Cf.  Huschke,  Serv.  Tullius,  pp.  585  sq. ;  C.  G. 
Zumpt,  Vber  Ursprung.  Form,  u.  Bedeutung  d.  Centumvircdgerichts,  Berlin,  1838 ; 
Bachofen,  De  Romanorum  jttdiciis  civilibus,  Gottingen,  1840,  pp.  9  sq. ;   Keller, 
Rdm.  C.  P.,  §  6 ;    Karlowa,  Rom.  C.  P.,  pp.  247  sq. ;    Kuntze,'  Excurse,  pp.  112 
sq. ;  Clark,  Early  Roman  Law,  pp.  103  sq. ;  Muirhead,  Roman  Law,  pp.  68-75. 

2  Dion.  iv.  13. 

8  Freeman's  guess  is  "that  the  new  Roman  people,  the  plebs,  was  made  up 
from  the  beginning  of  strictly  local  tribes ;  it  is  certain  that,  as  the  state  grew, 
it  grew  by  the  addition  of  fresh  local  tribes."  Comparative  Politics,  p.  70. 


72 


THE  SCIENCE  OF  JURISPRUDENCE 


Plebeian 
families 
incapable 
of  forming 
a  gens. 


Origin  of  servile  condition  of  clientship.  "  In  the  old  life  of  the  pagus 
Ite  in  client-  and  the  gens,  the  weaker  sought  protection  of  the  stronger  by 
"^P-  a  willing  vassalage  which  ripened,  when  the  state  was  formed, 

into  the  plebeiate,  which  had  its  origin  in  clientship.  A  similar 
position  was  ultimately  gained  by  the  descendant  of  the  manu- 
mitted slave.  The  stranger  (hostis)  from  a  city  which  had  no 
treaty  relations  with  Rome,  or  no  relation  which  guaranteed 
a  mutual  interchange  of  citizenship,  must,  if  he  wandered  to 
this  new  home,  also  make  application  to  a  patron  and  become 
his  client."  l  It  was  the  sacred  duty  of  the  patron  to  provide 
his  client  with  all  that  was  necessary  for  his  sustenance  and 
that  of  his  family ; 2  and  as  private  holdings  increased  in  ex- 
tent, it  was  not  unusual  for  the  patron  or  his  gens  to  give  a 
client  a  plot  of  land  for  cultivation  to  be  held  at  pleasure.3 
But  the  naturally  organized  plebeian  family,  even  when  its 
head  became  in  strict  law  a  paterfamilias,  could  never  become 
the  unit  in  a  group  of  families  capable  of  forming  a  gens  of  its 
own,  even  when  such  families  bore  a  common  name  and 
were  believed  to  have  a  common  descent.  Although  such  a 
group  might  in  the  course  of  time  become  legally  independent 
and  freed  from  all  burdens  of  clientship,  it  was  still  disqualified 
by  its  original  condition  of  dependence.  It  remained  a  mere 
offshoot  (stirps) ;  it  could  never  become  a  self-existent  gens.4 

1  Greenidge,  Roman  Public  Life,  pp.  5-6.     As  to  the  reception  of  the  inhabit- 
ants of  a  conquered  city,  who  were  violently  deported  to  Rome,  into  the  citi- 
zen body  as  members  of  the  tribe  and  the  curia,  see  Livy  (i.  28),  who  says, 
"Populum  omnem  Albanum  Romam   traducere  in  animo  est,  civitatem  dare 
plebi,  primores  in  patres  legere  " ;   and  Dionysius  (ii.  35),  who  represents  the  peo- 
ple of  Canina  and  Antemnae  as  being,  after  their  subjection,  enrolled  eZs  0vX<£» 
Kal   <t>pd.Tpat.     In    prehistoric   times  it    is  probable  that  they  became  clients 
immediately  of  the  king,  and  ultimately,  perhaps,  of  the  patrician  houses  to 
which  they  attached  themselves  as  dependents. 

2  As  to  the  rule  of  the  Twelve  Tables,  "  Patronus  si  client!  fraudem  faxit,  sacer 
esto,"  attributed  by  Dionysius  to  Romulus,  see  Voigt,  Leges  Regiae,  pp.  574  sq.  • 
Mommsen,  Staatsrecht,  iii.  82,  n.     As  to  the  general  condition  of  the  client, 
see  Ihering,  Geist  des  Rom.  Rechts,  i.  237. 

3  Savigny,  Recht  des  Besitzes  (7th  ed.),  p.  202. 

*  Greenidge  finds  the  disqualification  in  the  definition  of  gentilitas  given  by 
the  jurist  Scaevola,  two  of  its  conditions  being  free  birth  in  the  second  degree 
and  the  absence  of  servile  blood  in  one's  ultimate  ancestry.  Roman  Public 
Life,  p.  10,  citing  Cic.  Top.  29. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  73 

Even  if  it  be  admitted  that  the  plebeians  had  the  right  to  hold 
property  both  movable  and  immovable,  to  transfer  it  by  quiri- 
tarian  modes  of  conveyance,  and  to  have  the  protection  for  it 
of  the  tribunals,  the  fact  remains  that  they  had  no  share  in  the 
government  of  the  city,  and  no  right  to  participate  in  its  re- 
ligion.   While,  even  before  the  Servian  reforms,  the  plebeians 
through  the  decay  of  clientage  may  have  become  half-fledged 
citizens,  their  intermarriage  with  the  gentile  houses  was  out  NO  inter- 
of  the  question.     During  the  first  few  centuries  gentes  they  had  witlTgen- 
none;  a  fact  which  placed  them  at  a  disadvantage  in  the  matter  tlle  houses- 
of  inheritance  and  guardianship.1    The  aim  of  the  military, 
financial,  and  constitutional  reforms  of  Servius  Tullius  was  to 
hasten  the  advance  toward  equality  between  patricians  and 
plebeians  by  recognizing  the  latter  for  the  first  time  as,  in  a 
sense,  members  of  the  state.    The  basis  of  the  primitive  mili- 
tary system  had  been  the  three  tribes,  each  of  which  furnished 
one  thousand  men  to  the  legion  and  one  hundred  to  the 
cavalry.2    Servius  undertook  the  formation  of  a  new  and  en-  Servian 
larged  army  on  a  new  footing,  disregarding  both  the  old  clan  ^tenZ 
divisions  and  the  semi-religious,  semi-political  curiae.    The 
new  system  rested  on  a  distribution  of  all  freeholders  (assidui) 
into  tribes,  classes,  and  centuries.3    As  the  new  arrangement 
was  to  embrace  the  whole  community,  and  as  the  plebeians, 
many  of  whom  had  no  clans,  could  not  be  made  members  of  the 
three  primitive  tribes,  it  was  necessary  to  invent  new  tribes  for  Four 
their  benefit  which  could  include  the  whole  community.4    As  a  invented.3 
recognition  of  the  rights  of  property  was  a  necessary  prelimi- 

1  On  these  obscure  subjects,  see  Mommsen,  Staatsrecht,  i.  66  sq.,  130  sq. ; 
Block,  Origines  du  senat  romain,  pp.  255  sq. ;  Karlowa,  Rom.  RG.  i.  62  ; 
Cuq,  Int.  Jurid.,  pp.  43  sq. 

*  Varro,  L.L.  v.  89. 

*  Cic.  De  Rep.  ii.  22 ;  Liv.  i.  4 ;  Dion.  iv.  16. 

4  The  four  were  Palatina,  Suburana,  Exquilina,  Collina.  Cf.  Liv.  i.  43. 
Mommsen  holds  that  "  the  four  tribes  are  probably  nothing  more  than  the 
three  Romulian  increased  through  the  territorium  of  the  town  on  the  Quirinal." 
Staatsrecht,  iii.  125. 


74  THE  SCIENCE  OF  JURISPRUDENCE 

nary  to  the  imposition  of  taxation  and  the  full  quota  of 
military  service,  the  tribes  marked  divisions  of  the  land,  and 
individuals  were  registered  in  that  tribe  in  which  their 
land  allotment  lay.1  It  is  probable,  however,  that  the 
tribes  were  more  than  mere  divisions  of  the  land;  they 
appear  to  be  divisions  of  the  populus  Romanus,  of  which 
the  disinherited  or  ruined  patrician  who  has  lost  his  land 
is  still  a  member.2  The  central  idea  of  the  Servian 
reforms  was  essentially  military,  and  its  methods  of  reg- 
istration recognized  only  those  persons  who  were  qualified 

Wealth  as  a  for  service  by  wealth  —  wealth  was  the  primary  basis  of  classi- 

1-  fication.     For  strategic  purposes  the  new  array  was  divided 

into  classes,3  according  to  age,  the  unit  of  organization  being 

the  centuria,  consisting  nominally  of  one  hundred  men.    The 

The  census,  act  of  registration  (census}  was  a  solemn  religious  function 
conducted  by  the  king,  who  numbered  his  fighting  force,  saw 
that  each  warrior  was  in  his  proper  rank,  excluded  from  these 
ranks  men  who  were  stained  with  sin,  and  then  concluded 
the  examination  with  a  ceremony  of  purification  (lustrum). 
This  system,  at  first  exclusively  military  in  its  nature  and 
objects,  was  subsequently  adopted  with  modifications  as  the 

Basis  of        basis  of  the  political  system.     Despite  the  fact  that  the  pri- 

system!  *  mary  purpose  of  the  centuriate  organization  was  the  assembly 
and  registration  of  those  liable  for  military  service,  it  was  soon 
employed  as  a  scheme  for  the  collection  of  taxes  on  the  regis- 
tered wealth  of  the  citizens  of  the  classes.  Thus  a  new  and 
mixed  assembly  sprang  into  existence,  comitia  centuriata,  a 

1  For  that  reason  Servius  is  said  to  have  prohibited  transference  of  domicile 
or  allotment.     Dion.  iv.  14. 

2  "The  tribe  to  which  a  landless  man  belonged  would  depend  upon  his  dom- 
icile."    Greenidge,  Roman  Public  Life,  p.  68. 

3  For  service  in  the  first  class  the  property  qualification  is  given  at  100,000 
asses   (Livy),  for   the   second    at    70,000,    third   50,000,   fourth   25,000,   fifth 
11,000.     A  certain  acreage  of  land,  as  an  original  qualification,  was  probably 
changed  afterwards  into  a  given  sum  of  money.      Cf.  Mommsen,  Romische 
Tribus,  p.  115. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  75 

citizen  army,  parliament  and  law  court  in  one,  to  which  a  pre- 
ponderance  of  political  power  was  inevitably  transferred, 
While  the  older  assembly  of  the  patrician  order,  comitia  functlons 
curiata,  was  not  suddenly  stripped  of  its  functions,  there  was 
a  large  number  of  important  public  acts  which  were  naturally 
performed  from  the  first  by  the  assembly  of  the  centuries 
because  especially  within  its  jurisdiction.  To  this  assembly 
an  announcement  of  a  purpose  to  declare  war  could  most  ap- 
propriately be  made;  by  the  taxpayers  here  assembled  the 
war  tax  (tributum)  could  be  most  conveniently  assessed; 
here  the  oath  of  allegiance,  probably  renewed  at  every  taking 
of  the  census,  was  expressed  in  a  lex  centuriata,1  and  not,  as  at 
first,  in  a  lex  curiata;  and  here,  no  doubt,  was  exercised  the 
appellate  power,  when  the  king  allowed  an  appeal  in  a  criminal 
proceeding,  because  the  regal  jurisdiction  which  the  people 
challenged  by  the  provocatio  was  essentially  military  jurisdic- 
tion. Thus  before  the  end  of  the  regal  period  a  silent  yet 
momentous  change  was  wrought  in  the  structure  of  the  primi- 
tive constitution  through  the  transference  of  the  substance  of 
sovereignty  from  the  comitia  curiata,  the  assembly  of  a  single 
order,  to  the  comitia  centuriata,  representing  both  orders,  now 
blended  in  the  populus  Romanus  in  the  full  sense  of  that  term. 

5.   Beneath  the  fabulous  story  of  the  flight  of  the  kings,  as  The 
told  by  the  chroniclers  whom  Livy  2  followed,  it  is  not  hard  to  andtheC 
perceive  the  marks  at  Rome  of  the  widespread  wave  of  change 
similar  to  that  which  in  Greece  swept  away  the  old  heroic 
monarchies.    At  Rome,  however,  the  transition  was,  exter- 
nally, more  sudden  and  decided.     Rome  had  nothing  answer- 
ing to  the  archonship  for  life  or  ten  years ;  into  the  place  of  the 
king,  chosen  for  life,  there  at  once  stepped  the  two  consuls,  or 

1  As  such  hi  the  Republic  it  was  given  for  the  censors.  Cic.  De  Leg.  Ayr. 
ii.  11,  26. 

a  Liv.  ii.  9-14.  Cf.  also  Plin.  (N.H.  34.  14)  and  Tac.  (Ann.  iii.  72).  For 
criticism  of  the  whole  story  see  Schwegler  (ii.  60-202)  and  Zoller  (Latium, 
u.  Rom,  p.  180). 


76 


THE  SCIENCE  OF  JURISPRUDENCE 


Kingly 
office  put 
into  com- 

tnission. 


Kingly 

power 

survived. 


Consuls 

and 

quaestors. 


rather  praetors,  chosen  for  a  single  year.  After  personal  king- 
ship was  abolished,  the  new  magistrates  simply  stepped  into 
the  place  of  the  king  and  kept  it ;  the  kingly  office  was  simply 
put  into  commission,  with  nothing  taken  away  from  its  power, 
and  not  much  from  its  dignity.1  Even  the  title  of  king  lived 
on  at  Rome  as  the  style  of  one  of  the  priests  of  the  national 
religion  (rex  sacrificus,  rex  sacrificulus,  rex  sacrorum).2  In 
the  conservative  commonwealth  of  Rome,  which  never 
wholly  abolished  any  of  its  ancient  institutions,  we  see 
how  both  the  kingly  and  aristocratic  elements  of  the  state, 
in  the  common  acceptation  of  those  terms,  might  be  swept 
away  without  at  all  sweeping  away  the  substance  of  either 
the  kingly  or  the  aristocratic  power.  The  two  new  magis- 
trates who  were  elected  by  the  people  assembled  in  their  cen- 
turies were  armed  like  the  king  with  the  imperium  and  its 
united  powers  of  military  leadership  and  jurisdiction,  and 
therefore  bore  the  old  titles  of  praetores  and  judices.3  While 
they  had  the  right  to  nominate  their  successors,  such  nomi- 
nations were  subject  to  ratification  by  the  centuriate  assembly 
to  which,  by  a  law  passed  by  P.  Valerius  (509  B.C.),  an  appeal 
was  allowed  against  every  sentence  of  a  magistrate  pronounced 
against  the  life  of  a  Roman  citizen.4  To  the  consuls  were 
given  two  general  assistants,  the  annually  appointed  quaes- 
tors, whose  most  distinctive  duties  as  representatives  of  the 
supreme  magistracy  were  those  concerning  criminal  jurisdic- 
tion and  finance,  probably  occupying  with  respect  to  criminal 
procedure  much  the  same  place  as  the  duoviri  in  the  trial  of 

1  It  is  a  mere  conjecture  that  a  special  right  to  share  in  the  chief  magistracy 
was  for  a  moment  reserved  to  the  house  of  the  fallen  king.     See  Niebuhr, 
Romische  Geschichte,  i.  544. 

2  Liv.  vi.  41 ;  xl.  42.     That  his  real  title  was  rex  sacrorum  appears  from 
Livy  himself  (xxvii.  6),  from  Gellius  (xv.  27),  and  Cicero  (Pro  Domo  Sua,  14). 
Rex  sacrificulus  must  have  been  a  survival  of  a  real  rex. 

9  For  the  title  praetores,  see  Cic.  De  Leg.  iii.  3,  8 ;  for  that  of  judices,  Varro, 
L.L.  vi.  88. 

4  "Latae  deinde  leges  .  .  .  ante  omnes  de  provocatione  ad  versus  magis- 
tratus  ad  populum."  Liv.  ii.  8  (509  B.C.).  See  also  Cic.  De  Rep.  i.  40,  62. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  11 

Horatius.1    While  in  the  choice  of  the  members  of  their  coun- 
cil of  state,  the  senate,  the  consuls  were  legally  as  unfettered 
as  the  king  had  been,2  they  were  so  restrained  by  custom  that 
the  senators  were  no  doubt  protected  against  either  capricious 
removal  or  selection.    The  patrician  clans  had  a  close  hereditary  Senate  as 
connection  with  the  senate,  and  the  history  of  the  next  century  o/pafricia 
and  a  half  represents  it  as  the  stronghold  of  patrician  preju-  influence- 
dice  and  influence.    And  yet  during  the  earlier  period  of  the 
Republic  the  power  of  the  magistrates  as  the  representatives 
of  kingship  was  in  the  ascendant.     In  great  emergencies  they 
could  re-create  the  single  kingship  by  the  appointment  of  a 
dictator.3   In  501  B.C.,  only  eight  years  after  the  establishment  Dictator- 
of  the  Republic  and  during  a  war  with  the  Latins,  the  consuls  criminal 
nominated  a  chief  of  state  with  the  royal  title  and  powers.4  Uw- 
Under  normal  conditions  the  criminal  law,  which  was  becoming 
more  and  more  secularized  and  removed  from  the  direct  con- 
trol of  religion,  was  monopolized  by  the  official  class,  as  a 
criminal  inquiry  could  be  undertaken  solely  on  the  initiative 
of  the  consuls  who  were  ostensibly  the  only  guardians  of  the 
criminal  code.    Against  this  recognized   form  of  patrician 
power  the  plebeians  renewed  their  struggle  for  legal  and  social 
equality  armed  with  little  more  than  the  restricted  voting  power 
they  had  won  in  the  comitia  centuriata.5    The  primary  purpose 

1  Liv.  i.  26.  As  to  the  tradition  which  assigns  these  officials  to  the  regal 
period,  see  Mommsen,  Staatsrecht,  ii.  523  sq.  He  thinks  that  while  the  financial 
quaestors,  as  standing  officials,  originated  with  the  Republic,  they  had  their 
origin  in  the  criminal  quaestores  of  the  regal  period. 

3  Festus,  p.  246.     "  Praeteriti  senatores  quondam  in  approbio   non  erant, 
quod,  ut  reges  sibi  legebant  sublegebantque,  quos  in  consilio  publico  haberent, 
ita  post   exactos  cos  consults  quoque  et  tribuni   militum  consular!  potestate 
conjunctissimos  sibi  quosque  patriciorum  et  deinde  plebeiorum  legebant." 

*  Mommsen 's  theory  is  that  the  dictator  was  regarded  as  a  superior  colleague 
of  the  consuls.  His  earliest  official  title  was  magister  popvli,  the  technical  title 
in  the  augural  books.  Cic.  De  Leg.  iii.  3,  9.  In  deference  to  republican  senti- 
ment he  was  later  called  dictator.  Staatsrecht,  ii.  145,  153. 

4  Liv.  ii.  18;   Pompon,  in  Dig.  i.  2,  2,  18. 

6  It  seems  to  be  beyond  doubt  that  at  some  time  during  the  first  three  cen- 
turies of  the  Republic  plebeians  were  included  in  the  comitia  curiata.  Mommsen, 
Staatsrecht,  iii.  93. 


78 


THE  SCIENCE  OF  JURISPRUDENCE 


Plebs  strug- 
gle to  limit 
power  of 
magistrates. 


Concession 
of  495  B.C. 


Creation 
of  tribunes. 


Concilium 

plebis 

curiatim. 


of  the  plebs  was  to  defend  themselves  by  limiting  the  power 
of  the  magistrates  in  the  earliest  social  struggles  which  center 
around  the  possession  of  the  public  land1  and  the  law  of  debtor 
and  creditor.  Under  that  law  the  borrower  was  allowed  to 
sell  his  perpetual  services  to  his  creditor  conditionally,  and 
upon  default  the  debtor  and  his  whole  familia  passed  into  the 
power  of  his  purchaser,  and  became  his  bondsman  (nexus)  2 
until  the  debt  was  paid  by  his  labor.  It  was  the  application 
of  this  hard  law  of  debt  that  called  forth  the  first  resistance 
from  the  plebs,  who  were  oppressed  not  only  by  constant  mili- 
tary duty  in  the  field  but  by  the  financial  sacrifices  such  ser- 
vice involved.  As  early  as  495  B.C.  a  riot  was  appeased  at 
Rome  only  by  the  promise  of  the  Consul  Servilius  that  the 
nexi  should  be  released  for  service,  and  that  no  one  should 
seize  goods  or  pledges  from  a  soldier  while  he  was  in  the  field. 
When  the  other  Consul  Appius  renewed  almost  immediately 
the  enforcement  of  the  law  of  debt,  the  plebeian  military 
contingent  suddenly  gathered  in  battle  array  and  demanded 
the  appointment  of  two  magistrates,  known  as  tribunes,3  who 
should  have  the  power  of  suspending  the  decree  of  the  consuls 
when  leveled  against  a  member  of  the  plebs.  These  magis- 
trates, originally  two  in  number,  and  recognized  by  a  lex  cen- 
turiata  passed,  perhaps,  in  the  very  year  of  the  secession  (494 
B.C.),  must  from  the  first  have  been  elected  by  an  assembly 
of  the  plebs  known  as  the  concilium  plebis  curiatim.4  In  deal- 
ing with  these  different  assemblies  it  must  never  be  forgotten 
that  "practically  we  are  treating  the  Roman  community  en- 

1  As  to  early  distributions  of  land  amongst  plebeians,  see  Muirhead,  Roman 
Law,  pp.  39  sq. 

3  For  the  abundant  literature  upon  the  vexed  questions  involved  in  the  nexal 
contract,  see   Danz,  Gesch.  d.  r.  R.,  vol.  iii.  §  146 ;    H.  Kriiger,  Gesch.  d.  cap. 
dem.,  pp.  296  sq. ;   Vainberg,  Le  nexum  ...  en  droit  romain,  Paris,  1874. 

1  In  private  law  he  is  a  slave ;  in  public  law  he  is  free-born  Roman  citizen, 
and  may  be  summoned  for  service  in  the  legions  when  the  state  needs  his  help." 
Greenidge,  p.  24.  Varro,  L.L.  v.  81.  "  Tribuni  plebei,  quod  ex  tribunis  militum 
primum  tribuni  plebei  facti,  qui  plebem  defenderent,  in  secessione  Crustumerine." 

4  Cic.  ap.  Ascon.     In  Cornel.,  p.  76. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  79 

gaged  with  the  different  orders  of  the  day  under  different  for- 
mal rules.    The  people  require  to  be  organized  in  one  way  for 
one  function,  and  in  another  way  for  another,  but  under  the 
changing  forms  there  is  a  unity  of  personnel  which  forbids  us 
regarding  the   different  assemblies   as   different   sovereigns. 
The  only  disturbance  to  this  unity  is  found  in  the  fact  that  the 
patricians  were  always  excluded  from  the  concilium  of  the 
plebs."  1    For  that  reason  the    patricians  maintained   that 
resolutions  (plebiscite,)  carried  by  the  tribunes  in  the  concilium 
plebis  were  not  binding  on  their  order.     The  plebs  could  only  Plebs  could 
pass  rules  in  their  own  interests  binding  on  themselves,  which  themselves. 
gave  to  their  body  the  character  of  a  guild.    When  their  reso- 
lutions went  beyond  these  limits,  they  were  mere  petitions  to 
the  only  recognized  legislative  power,  the  consuls,  presiding 
over  the  comitia  centuriata.    Such  they  remained  down  to  the 
year  287  B.C.,  when  these  resolutions  of  the  plebs  were  first 
raised  to  the  level  of  laws.2    The  magistrates  of  the  plebs  were  Prior 
given  two  assistants  called  aediles,  who  bore  the  same  relation 
to  them  as  the  two  quaestors  did  to  the  consuls.3   They  served  Aediles. 
the  tribunes  in  the  exercise  of  their  coercitio,  and  after  the 
tribunes  had  gained  criminal  jurisdiction,  they  assisted  them 
as  delegates.4 
Not  until  462  B.C.  did  the  plebeian  community  attempt  to 


advance  beyond  the  system  of  defensive  control  over  the  mag-  beyond 
istrates  of  the  state  by  establishing  such  an  equality  in  the 
administration  of  the  law  as  would  render  this  clumsy  nega- 

1  Greenidge,  Roman  Public  Life,  p.  250. 

2  By  the  lex  Hortensia  the  concilium  plebis  was  made  one  of  the  legislative 
organs  of  the  community.     The  lawyers  regard  it  as  the  measure  which  gave 
decrees  of  the  plebs  the  full  force  of  law.     "Olim  patricii  dicebant  plebi  scitis  se 
non  teneri,  qui  asine  auctoritate  eorum  facta  essent  ;  sed  postea  lex  Hortensia 
lata  est,  qua  cautum  est,  ut  plebi  scita  universum  populum  tenerent,  itaque  eo 
modo  legibus  exaequala  sunt."      Gains,  i.  3.      See  also  Pompon,  in  Dig.  i.  2, 
2,  8. 

*  "Tribunes  et  aediles   turn  primum  per   seditionem  sibi    plebes   creavit." 
Gell.  xvii.  21.     See  also  Pompon,  in  Dig.  i.  2,  2,  21  ;  Dion.  vi.  90. 

*  Liv.  iii.  31.     As  to  the  derivation  of    the  word    aediles,  see    Mommsen, 
Staatsrecht,  ii.  480. 


80 


THE  SCIENCE  OF  JURISPRUDENCE 


Plebs  de- 
mand that 
customary 
law  be 
reduced 
to  writing. 


tive  system  unnecessary.  Prior  to  the  Twelve  Tables  the 
private  citizen  of  Rome  had  no  means  of  ascertaining  the  law 
except  by  asking  some  sage,  who  need  not  answer  unless  he 
please,  and  whose  view  had  no  authority  except-that  which  his 
personal  reputation  implied.  A  knowledge  of  the  customary 
law,  the  mainstay  of  patrician  power,  was  a  mystery  guarded  by 
the  awful  sanctity  of  the  consulate  and  the  pontifical  college.1 
In  order  to  remove  that  disadvantage  and  to  impose  limits  on 
the  judicial  caprice  of  the  consuls,  the  plebs  demanded  that 
that  unwritten  and  elastic  system  of  mysterious  rules  should 
be  vulgarized  by  being  reduced  to  a  written  system  accessible 
to  all.  In  462  the  tribune  C.  Terentilius  Arsa  made  a  proposal 
to  the  concilium  of  the  plebs  that  a  commission  of  five  should 
be  appointed  to  clear  up  the  forms  of  legal  procedure,2  and  in 
the  next  year  a  resolution  of  the  whole  college  of  tribunes  was 
framed  for  that  end.  The  final  outcome  of  the  agitation  was 
the  appointment  of  a  commission  of  three  to  gather  informa- 
tion from  the  Greek  codes,  and  upon  the  return  of  the  envoys 
in  452,  after  an  absence  of  three  years,  the  demands  of  the 
tribunes  for  the  instant  prosecution  of  the  work  were  renewed. 
The  result  of  the  election  by  the  comitia  centuriata  was  a  com- 
mission of  ten  patricians  3  whose  duty  it  was  to  frame  and 
publish  a  code  of  law  binding  equally  on  both  of  the  orders. 
The  appointment  of  this  board  of  ten  men  with  consular  power 
(decemviri  consulari  imperio  legibus  scribendis),  but  not  sub- 
ject to  the  law  of  appeal,4  who  were  to  be  the  sole  and  supreme 
magistrates  for  a  year,  was  a  complete  abrogation  of  the  con- 
stitution. Within  that  time  the  work  was  done  and  the  code 
posted  up  on  ten  tablets  (tabulae)  and  published  to  the  masses.5 

1  See  below,  p.  98  sq. 

*  Liv.  iii.  9 ;   Pompon,  in  Dig.  i.  2,  2,  4 ;  Mommsen,  Staatsrecht,  ii.  202. 

*  Liv.    iii.  33 ;   Mommsen,   Staatsrecht,   ii.   714.      Plebeians  were  eligible  to 
membership,  but  were  excluded  by  patrician  influence. 

*  "Placet  creari  x  viros  sine  provocatione,  et  ne  quis  eo  anno  alius  magis- 
tratus  esset."     Liv.  iii.  32. 

*  Voigt,  X II.  Tafeln,  i.  7,  notes  2, 3 ;  Kriiger,  Geschichte  der  Quellen,  p.  9,  note  9. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  81 

The  whole  body  was  passed  as  a  lex  by  the  comitia  centuriata, 

and  the  people  were  told  that  the  commission  had  created 

equal  rights   for   all.1    When  it   was   ascertained   that   the  New  board 

work  was  not  quite  complete,  a  new  board  of  ten,  including  pie-  including 

beians,  was  appointed,2  and  in  that  way  two  new  sections  were  plel 

added,  bringing  up  the  number  of  the  tabulae  to  twelve,  which, 

after  confirmation  by  the  centuries,  were  published  with  the 

rest  of  the  code  by  the  consuls  of  448.3 

Despite  the  fact  that  the  rhythmical  sentences  of  the  Twelve  Fragments 
Tables  were  committed  to  memory  by  schoolboys  in  Cicero's  Twelve 
time,4  modern  scholars,  after  the  most  painstaking  research,  Tables- 
have  only  been  able  to  recover  fragments  of  them  from  the 
writings  of  such  classical  authors  as  Cicero,  Aulus  Gellius, 
Festus,  Varro,  and  the  elder  Pliny,  and  from  such  anti-Jus- 
tinian jurists  as  Gaius,  Paul,  and  Ulpian.5    And  out  of  these 
only  about  forty  provisions  have  been  recovered  in  what  pro- 
fess to  be  the  ipsissima  verba  of  the  original  text.    And  yet 
with  the  aid  of  such  fragments,  as  now  edited,  it  is  possible  to 
understand  Tacitus  when  he  says  that  the  first  Roman  code 
was  the  "consummation  of  equal  right."  6    With  a  judicious 
contempt  for  symmetry  and  with  a  genuine  Roman  respect 
for  the  past,  the  commissioners  proceeded  to  arbitrate  between 

1  "Se  .  .  .  omnibus,    summis    infimisque    jura    aequasse."      Liv.    iii.    34. 
The  Tables  were  in  existence  and  seem  to  have  been  hung  up  in  the  forum  as 
late  as  the  third  century  of  our  era.     See  Mitteis,  Reichsrecht,  p.    138.     As  to 
the  recent  discovery  of  the  Tables  of  Gortyn,   nearly  as  old  in  date  as  the 
decemviral  code,  see  Roby  in  Law  Quarterly  Review,  vol.  ii.  p.  136. 

2  Liv.  iii.  35 ;    Dion.  x.  58. 

*  "Leges  ...  in  aes  incisas  in  publico  proposuerunt. "     Liv.  iii.  57.   10. 
Pomponius  says,  "in  tabulas  eboreas  prescriptas. "     Dig.  i.  2,  2,  4. 

4  "Discebamus  enim  pueri  XII,  ut  carmen  necessarium;  quas  jam  nemo 
discit."  Cic.  De  Leg.  ii.  23,  59.  Cicero  declared  that  the  Tables  surpassed  the 
libraries  of  all  the  philosophers.  De  Oral.  i.  44. 

*  Cf .  Dirksen,  Uebersicht  der  bisherigen  Versuche  zur  Kritik  u.  HersteUung  d. 
Zwolf-Tafel-Fragmente  (Leipzig,    1824)  ;    Voigt,  XII.   Tafeln  (Leipzig,    1883) ; 
Zocca-Rosa,  II  commento  de  Gaio  alle  legge  delle  XII.  Tavole   (Rome,  1888)  ; 
Krxiger,  Gesch.  d.  Quellen,  pp.  12-21 ;  Bruns,  Forties.  (Tubingen,  1879)  ;    Schoell, 
LegisXII.  Tab.  reliquiae  (Berlin,  1866) ;  Wordsworth,  Fragments  and  Specimens 
of  Early  Latin  (Oxford,  1874),  pp.  253  sq. 

8  Ann.  iii.  27,  "finis  aequi  juris." 
o 


82 


THE  SCIENCE  OF  JURISPRUDENCE 


Effort  to 
make  the 
law  equal 
for  all. 


Consti- 
tutional 
guarantees. 


the  warring  classes  by  so  leveling  the  law  as  to  make  it  equal 
for  all.  Thus  a  distinct  advance  was  made  in  the  recognition 
of  plebeian  rights.  Where  a  selection  had  to  be  made  between 
the  customary  law  prevailing  in  the  patrician  or  plebeian  com- 
munity, in  almost  every  important  particular  the  latter  was 
preferred.  The  right  of  marriage  between  the  orders  was, 
however,  denied.  Accepting  as  a  guide  Livy's  declaration 
that  the  decem viral  code  remained  the  "fountain  of  all  public 
and  private  law," l  it  will  be  convenient  to  group  its  provisions 
under  one  or  the  other  of  those  two  heads.  Among  the  con- 
stitutional guarantees  the  most  important  are  those  which 
recognized  the  sovereignty  of  the  popular  assembly  by  de- 
claring that  its  last  enactment  should  be  final,2  and  that  a  fair 
trial  to  the  citizens  should  be  assured.  Cicero  says  the  code 
granted  the  provocatio  "  from  every  kind  of  court  and  punish- 
ment." 3  It  was  provided  that  no  law  or  criminal  sentence 
should  be  directed  against  a  private  individual  (privilegia 
ne  inroganto),  and  that  no  capital  sentence  should  be  passed 
except  by  the  assembly  of  the  centuries  (nisi  per  maximum 
comitiatum).*  While  secret  gatherings  (coetus  nocturni) 
were  severely  prohibited,  the  right  of  free  association  was 
granted  so  as  to  permit  the  formation  of  guilds  (collegia  or 
sodalicia),  whose  rules  made  for  their  own  guidance,  without 
special  charter,  were  valid,  provided  they  infringed  no  public 
law.5  Although  as  a  whole  the  system  embodied  in  the  code 
is  one  of  jus  as  distinguished  from  fas,  there  are  survivals  of 
the  archaic  religious  penalties  alongside  of  those  imposed  by 

1  "Decem  tabularum  leges  quae  nunc  quoque  in  hoc  immenso  aliarum  super 
alias  acervatarum  legum  cumulo  fons  omnis  publici  privatique  est  juris  "  (iii.  34). 

2  Liv.  vii.  17,  and    that    too  without  limiting   the  sphere  of  its  legislative 
activity.    "  In  duodecim  tabulis  legem  esse,  ut  quod  cumque  posterum  populus 
jussisset,  id  jus  ratumque  est." 

8  "Ab  omni  judicio  poenaque  provocari  licere  indicant  XII.  Tabulae  com- 
pluribus  legibus."  De  Rep.  ii.  31,  54. 

4  De  Leg.  iii.  4,  11. 

8  As  to  the  Greek  origin  of  that  rule  in  a  law  of  Solon's,  see  Gaius  in  Dig. 
47,  22,  4. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  83 

the  old  principle  of  self-help.    As  an  illustration  of  the  former  Religious 
it  may  be  said  that  the  man  who  destroyed  standing  corn  was  ^d* 
hanged  as  an  offering  to  Ceres,1  and  the  involuntary  homicide  8elf'helP- 
could  expiate  his  guilt  with  the  piaculum  of  a  ram.     As  an 
illustration  of  the  latter,  it  may  be  said  that  a  limb  was  still 
to  be  given  for  a  limb,2  and  for  minor  wrongs  compensation 
was  allowed,  twenty-five  asses  being  full  reparation  for  a  com- 
mon assault.    Abuse  of  the  freedom  of  speech  was  severely 
punished,  death  being  the  penalty  for  incantations  or  libels 
against  a  citizen.3    The  same  penalty  was  imposed  for  per- 
duellio  in  the  form  of  rousing  an  enemy  against  the  state  or 
handing  over  a  citizen  to  the  enemy,4  and  also  on  the  judex  who 
had  accepted  bribes.5      The  provisions  of  private  law  related  Domain  of 

•    i  i-     •      A*        •  f  11        private  law. 

mainly  to  the  institutions  of  the  family,  the  fundamental  rules 
of  succession,  testamentary  disposition,  and  the  solemnities 
of  such  formal  acts  as  mancipation  and  nexum,  judicial  pro- 
cedure, debt,  and  usury.  The  marriage  recognized  was  the 
consensual  contract  of  the  plebs  strengthened  by  usus*  To 
that  order  was  given  perfect  freedom  of  testamentary  dispo- 
sition, in  accordance  with  the  plebeian  form  of  testament  per 
aes  et  lihram;  7  while  in  intestate  inheritance  and  in  guardian- 
ship the  rights  of  the  agnati,  common  to  the  plebs,  were  recog- 
nized as  prior  to  those  of  the  gentiles,  sometimes  peculiar  to  the 
patricians.8  A  form  of  adoption,  probably  already  in  use  in 
the  plebeian  community,  was  made  universal  by  the  recogni- 
tion of  emancipation  as  a  consequence  of  the  threefold  sale  of 

1  Plin.  N.H.  xviii.  3,  12. 

2  "  Si  membrum  rupit,  ni  cum  eo  pacit,  talio  esto." 
*  Cic.  De  Rep.  iv.  12. 

4  Marcian  in  Dig.  48,  4,  3.  "  Lex  duodecim  tabularum  jubet  eum,  qui 
hostem  concitaverit  quive  civem  hosti  tradiderit,  capite  punire." 

6  Cell.  xx.  1. 

8  "But  what  is  more  important  is  the  testimony  borne  by  the  Twelve  Tables 
to  the  fact  that  the  foundation  of  marriage  by  usus,  viz.  the  early  notion  of  the 
indispensability  of  manus  for  constituting  a  valid  marriage,  has  already  been 
abandoned."  Sohm,  Institutes,  p.  361. 

7  See  above,  p.  64. 

8  Cf.  Greenidge,  pp.  10,  106. 


84 


THE  SCIENCE  OF  JURISPRUDENCE 


Mystery  as 
to  forms 
of  action 
continues. 


Code 

thoroughly 

Roman. 


a  son.1  The  wealthy  freedman  class  was  increased  by  the  law 
that  facilitated  the  emancipation  of  slaves  who  had  purchased 
their  freedom.2  While  freedom  of  contract  was  guaranteed 
by  the  Tables,  the  harsh  law  of  debt  was  softened  by  having 
the  penalty  defined  and  the  procedure  so  carefully  described 
as  to  offer  every  loophole  of  escape  to  the  debtor.3  Ten  per 
cent  (unciarium  fenus)  was  recognized  as  the  legal  rate  of  in- 
terest, and  the  usurer  who  exceeded  it  was  punished  more 
harshly  than  the  thief  and  compelled  to  restore  fourfold.4 
One  great  abuse  remained  untouched.  The  mystery  as  to  the 
forms  of  actions  was  permitted  to  continue  as  the  special 
possession  of  the  pontiffs.5  The  rules  of  procedure  defined  in 
the  code  for  all  actions  related  only  to  the  summons  of 
parties  and  witnesses  and  the  length  of  the  trial.  In  the 
fragments  of  the  Twelve  Tables  there  are  to  be  found  but 
few  and  slight  traces  of  foreign  influence.  There  is  nothing 
tending  to  show  that  the  work  of  the  commissioners,  who 
were  sent  to  examine  the  laws  of  Athens  and  other  Greek 
cities  in  order  to  collect  materials  to  be  used  in  the  codifica- 
tion, was  seriously  influenced  by  such  examination.  While 
there  are  provisions  in  the  Tables  which  bear  a  remarkable 
resemblance  to  laws  in  force  in  Greece,8  there  is  no  authority 
for  saying  they  were  directly  borrowed.  The  code  was  thor- 
oughly Roman,  both  as  to  substantive  and  adjective  law, 
and  so  remained  eminently  national  and  un-Hellenic  to  the 
end  of  the  Republic.7 

1  "Pater  si  filium  ter  venum  duuit,  filius  a  patre  liber  esto." 

3  Ulpian,  Reg.  ii.  4. 

3  If,  however,  the  debtor  failed  to  take  advantage  of  all  the  delays  given 
him,  his  creditor  could  put  him  to  death  or  sell  him  as  a  slave  beyond  the  Tiber. 
Gell.  xx.  1. 

«  Cato,  R.R.  praef.  •  See  below,  p.  99. 

•  See  Cicero's  reference  (De  Leg.  ii.  23,  §  59)  to  the  regulations  about  funerals 
in  Table  X.,  and  Gaius'  references  (lib.  4,  ad  XII,  Tab.  in  Dig.  x.  1,  13,  and  xlvii. 
22,  4)  to  other  provisions.  See  also  Hofmann,  Periculum  beim  Kaufe  (Vienna, 
1870),  p.  172,  and  his  Beitrage  zur  Gesch.  d.  griech.  u.  rom.  Rechts  (Vienna,  1870), 
p.  71. 

7  Cf.  Bryce,  Studies  in  History  and  Jurisprudence,  p.  755. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  85 

Such  were  the  provisions  made  for  the  settlement  of  all  Transition 
important  or  disputed  points  in  the  public  and  private  law 
of  Rome  when  a  knowledge  of  its  substantive  elements 
passed  from  the  special  keeping  of  a  privileged  oligarchy  to 
the  people  as  a  whole.  Despite  its  illustrious  source,  noth- 
ing could  be  more  misleading  than  the  statement  that 
"the  most  celebrated  system  of  jurisprudence  known  to 
the  world  begins,  as  it  ends,  with  a  code."  '  For  centuries 
before  the  Twelve  Tables  Roman  customary  law  had  been 
slowly  approaching  the  critical  epoch  at  which  it  was  to 
lose  its  elasticity  by  being  reduced  to  rigid  written  forms. 
Important  as  that  event  was,  its  importance  is  that  which 
belongs  not  to  a  beginning  but  to  a  turning  point.  As 
stated  heretofore,  the  change  which  thus  took  place  at  Rome 
was  simply  a  part  of  a  wider  transition  from  unwritten  cus- 
tomary law  to  the  ancient  codes  that  appeared  in  Greece,  on 
the  Hellenized  seaboard  of  Western  Asia,  and  in  Italy,  and  of 
which  the  Twelve  Tables  are  the  most  famous  illustration.2 
Such  codes  of  laws  engraved  on  tablets  and  published  to  the 
people  were  substituted  for  traditional  usage  reposing  in  the 
recollection  of  privileged  oligarchies,  not  through  the  refined  Motives  for 
motives  now  urged  in  favor  of  codification,  but  rather  as  a 
matter  of  convenience  suggested  by  the  discovery  of  the  art 
of  writing,  and  also  by  the  abuses  arising  out  of  the  aristo- 
cratic monopoly  of  legal  knowledge.  The  Roman  code  of 
the  Twelve  Tables  was  but  little  more  than  an  enunciation  in 
written  words  of  the  existing  customs  of  the  Roman  people 
put  forth  at  a  time  when  Roman  society  had  barely  emerged 
from  that  intellectual  condition  in  which  civil  obligation  and 
religious  duty  are  inevitably  confounded.  The  vitally  im-  Result  of 
portant  result  brought  about  by  the  transition  which  thus  took 

1  Maine,  Ancient  Law,  p.  1.  And  yet  as  Sohm  has  stated  it :  "The  Twelve 
Tables  mark,  at  the  same  time,  the  starting  point  in  the  development  of  Roman 
law,  so  far  as  it  can  be  historically  authenticated. "  Institutes,  p.  24. 

*  See  above,  p.  49. 


86 


THE  SCIENCE  OF  JURISPRUDENCE 


The 

problem  of 
problems. 


Legal 
fictions. 


Equity. 


place  from  unwritten  customary  law  to  a  written  code  is 
embodied  in  the  fact  that  when  archaic  law  is  once  condensed 
into  a  code,  there  is  an  end  to  its  spontaneous  development, — 
all  after-changes  must  be  effected  in  it,  if  at  all,  deliberately 
and  from  without.  As  law  is  stable,  and  societies  of  the 
higher  type  progressive,  as  social  necessities  and  opinions  are 
ever  more  or  less  in  advance  of  law,  how  is  the  latter  to  be 
kept  in  harmony  with  the  former  ?  The  problem  of  problems 
for  students  of  the  Historical  School  is  involved  in  the  process 
through  which  the  strait-jacket,  put  on  an  infant  state,  in 
the  form  of  a  written  code,  is  to  be  made  sufficiently  elastic 
to  adapt  itself  to  all  the  changing  conditions  of  the  aftergrowth. 
As  Rome's  dominion  expanded,  as  her  public  life  became  more 
complex,  as  the  necessity  grew  for  the  extension  of  the  code 
of  a  single  city  to  an  empire,  she  solved  the  problem  involved 
in  the  adaptation  of  primitive  law  to  new  and  wider  conditions 
by  the  employment  of  the  three  agencies  known  as  legal 
fictions,  equity,  and  legislation.  Fictio,  in  old  Roman  law, 
is  a  term  of  pleading,  meaning  a  false  averment  upon  the 
part  of  the  plaintiff  which  the  defendant  could  not  deny,  and 
was  often  employed  for  the  purpose  of  giving  jurisdiction.1 
By  its  use  the  domain  of  Roman  law  was  expanded  under  the 
rule  which  made  untraversable  the  averment  that  the  plaintiff 
was  a  Roman  citizen  when  in  fact  he  was  a  foreigner.  A  far 
more  potent  agent  for  the  adaptation  of  law  to  social  wants  is 
equity,2  a  body  of  extrinsic  rules  built  up  alongside  of  the 
original  civil  law,  founded  on  distinct  principles  and  claiming 
the  right  either  to  expand  or  to  supersede  it  not  by  virtue 
of  any  external  authority,  but  simply  by  reason  of  the  superior 
sanctity  and  wisdom  inherent  in  such  principles.  By  means 
of  the  praetorian  equity  there  was  built  up  around  the  meager 

1  For  illustrations  and  explanations  of  actiones  ficticiae,  see  Sohm,  Institutes, 
pp.  181,  249,  250 ;  Maine,  Ancient  Law,  pp.  20  sq. 

8  "There  are  two,  and  only  two,  foundations  of  law  —  equity  and  utility." 
Burke,  Tract  on  the  Popery  Laws. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  87 

body  of  civil  law  contained  in  the  Twelve  Tables  a  scientific 
law  literature, —  fabricated  by  jurisconsults  who  professed  the 
most  profound  respect  for  the  letter  of  the  code,  —  which 
reached  a  considerable  volume  before  the  close  of  the  re- 
publican period.  Not  until  the  establishment  of  the  Empire 
does  the  true  period  of  Roman  statute  law,  which  was  scanty 
during  the  Republic,  really  begin.  The  enactments  of  the  Legislation 
emperors,  issued  at  first  under  the  guise  of  popular  sanction,  Empire.6 
and  finally  by  the  unaided  force  of  the  imperial  prerogative, 
flow  on  with  an  increasing  volume  from  the  consolidation  of 
the  power  of  Augustus  to  the  completion  of  the  code  of 
Justinian.  With  the  reign  of  Alexander  Severus  the  power  of 
growth  in  Roman  equity  seems  to  be  exhausted ; l  the  remain- 
ing history  of  Roman  law  is  the  history  of  the  imperial  consti- 
tutions. Therefore,  it  may  be  said  that  the  thousand  years  of 
history  that  lie  between  the  enactment  of  the  Twelve  Tables, 
448  B.C.,  and  the  death  of  Justinian,  565  A.D.,  is  simply  the 
record  of  the  process  through  which  legal  fictions,  equity, 
and  legislation  expanded  and  adapted  the  meager  provisions 
of  the  decemviral  code  to  the  new  conditions  arising  out  of  a 
marvelous  social,  political,  and  religious  development. 

6.   Not  until  eighty-one  years  after  the  close  of  the  struggle  The  praetor 
that  culminated  in  the  enactment  of  the  decemviral  code 
was  the  administration  of  civil  law  (jus  civile)  severed  from  vUe' 
the  consulship  and  intrusted  to  a  separate  magistrate,  known 
as  the  praetor  urbanus.2    That  result  was  the  final  outcome  of 
a  fresh  conflict  between  the  orders,  after  the  unfortunate 
attempt  at  despotism  made  by  the  second  board  of  decemvirs 
forced  their  abdication  and  the  re  establishment  of  consuls  cre- 
ated subject  to  the  right  of  appeal.     Under  their  guidance  the 

1  Gibbon,  Decline  and  Fall,  i.  176. 

2  "Cum  consoles  avocarentur  bellis  finitimis  neque  esset,  qui  in  urbe  jus  red- 
dere  posset,  factum  est  ut  praetor  quoque  crearetur,  qui  urbanus  appellatus  est, 
quod  in  urbe  jus  redderet."     Pompon,  in  Dig.  I,  2,  2,  27.     See  also  Liv.  vi.  42. 
"  Concessum  ...  a  plebe  nobilitatc  de  praetore  uno,  qui  jus  in  urbe  diceret, 
ex  patribus  creando." 


88 


THE  SCIENCE  OF  JURISPRUDENCE 


Leges 

Valeriae 

Horatiae. 


Opening 
of  the 
consulship. 


First 

plebeian 

consul. 


assembly  passed  a  series  of  laws  (the  leges  Valeriae  Horatiae), 
one  of  which  guaranteed  the  perpetuity  of  the  provocatio  by 
the  enactment  that  "no  one  should  in  future  create  a  magis- 
trate from  whom  there  was  no  appeal;  any  one  who  created 
such  a  magistrate  should  be  protected  by  no  law,  sacred  or 
profane,  and  might  be  slain  with  impunity."  *  From  this  time 
dates  the  continual  struggle  for  complete  social  and  political 
equality  between  the  two  orders,  the  plebs  demanding  that 
marriage  should  be  permitted  between  patricians  and  ple- 
beians.2 After  that  point  had  been  won,  the  tribunes  followed 
up  their  victory  by  pressing  their  measure  for  the  opening  of 
the  consulship.  As  direct  resistance  on  the  part  of  the 
patricians  was  hopeless,  they  resolved  to  replace  the  consul- 
ship by  the  office  of  military  tribune  with  consular  power  (tri- 
bunus  militum  consulari  potestate).3  As  military  posts  below 
the  supreme  command  had  long  been  open  to  the  plebs, 
members  of  that  order  were  eligible  as  military  tribunes 
whose  numbers  varied  from  three  to  six.4  During  the  period 
of  the  military  tribunate  (444  to  367)  the  consulship  was 
simply  suspended.  In  377  the  plebs  demanded  that  the  mili- 
tary tribunate  should  be  abolished,  that  the  consulship  should 
be  restored,  and  that  one  of  the  two  consuls  must  be  henceforth 
of  their  order.5  After  ten  years  of  bitter  conflict  the  plebs 
triumphed;  the  Licinian  rogations  became  law,  and  one  of 
their  authors,  L.  Sextius,  was  created  the  first  plebeian  consul. 
Out  of  this  defeat  the  patricians  plucked  a  victory  by  detach- 

1  "  Ne  quis  ullum  magistratum  sine  provocatione  crearet,  qui  creasset,  eum 
jus  fasque  esset  occidi :  neve  ea  caedes  capitalis  noxae  haberetur. "  Liv.  iii.  55. 

3  "De  conubio  patrum  et  plebis  C.  Canuleius  tribunus  plebis  rogationem 
promulgavit. "  Liv.  iv.  1.  The  consuls  led  the  opposition  as  long  as  they 
could,  but  at  last  the  magistrates  were  forced  to  bring  the  question  before  the 
people  and  then  "  victi  tandem  patres,  ut  de  conubio  ferretur,  consensere." 
Liv.  iv.  6. 

1  Liv.  iv.  6. 

•  See  Mommsen,  Staatsrecht,  ii.  184.     When  Livy  speaks  of  eight  (v.  1,  vi. 
27),  it  is  probable  that  this  number  included  the  six  tribunes  and   the  two 
censors. 

•  Liv.  vi.  35,  42 ;   Appian,  B.C.  i.  8. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  89 

ing  from  the  consulship  the  administration  of  civil  law,  which 

was  intrusted  to  a  separate  officer,  praetor  urbanus,  to  be 

elected  by  the  comitia  of  the  centuries  with  an  understanding 

apparently  that  he  should  be  a  patrician.1     Thus  was  accom- 

plished (367  B.C.)  a  constitutional  change  of  the  first  magnitude 

by  an  addition  of  a  third  colleague  to  the  consuls,2  who  was  ere-  A  third 

ated  "under  the  same  auspices"3  and  therefore  by  the  same  the  consult 

assembly  and  under  the  same  formalities  of  election.    The 

impossibility  of  the  consul's  paying  adequate  attention  to 

judicature  had  been  one  of  the  motives  which  prompted  the 

establishment  of  the  consular  tribunate.     Now  that  difficulty 

was  removed  upon  the  restoration  of  the  consulship  by  the 

permanent  severance  of  civil  jurisdiction  from  that  office. 

And  yet  while  the  praetor  was  needed  chiefly  for  the  purposes  Permanent 

of  jurisdiction,  he  possessed  all  the  other  aspects  of  supreme 

power  which  the  imperium  implied,  such  as  the  capacity  for 

command  in  war,4  for  summoning  and  transacting  business  with 

the  senate,  and  for  initiating  legislation.     It  is  therefore  easy 

to  understand  why  it  was  that  the  praetor  —  for  more  than 

one  hundred  and  twenty  years  (367-242)  the  sole  civil  magis- 

trate of  Rome  —  was  primarily  a  great  statesman  or  politician 

and  not  ordinarily  a  lawyer  by  profession  and  training. 

The  supreme  judicial  power  originally  vested  in  the  king  and 
then  transferred  to  the  consuls  was  thus  finally  deposited  with 
the  praetor  who,  if  not  a  jurisconsult  himself,  was  a  magistrate  Praetor  as 
entirely  in  the  hands  of  those  who  were.     The  law  which  the 


praetor  urbanus  administered  was  the  local  law  of  a  city,  now  ;M*  civae' 

1  For  Mommsen's  doubts  on  that  subject,  see  Staatsrecht,  ii.  204.     He  doubts 
it  chiefly  on  the  ground  that  no  law  is  mentioned  as  opening  the  office  to  ple- 
beians thirty  years  later. 

2  The  praetor  was  really  a  third  consul  who  was  specially  intrusted,  not 
with  the  military  command,  but  with  the  administration  of  justice. 

*  "Collegam  consulibus  atque  iisdem  auspiciis  creatum."     Liv.  vii.  1.     See 
also  Gell.  xiii.  15. 

*  The  word  praetor  means  literally  a  general,  and  is  a  title  of  honor  ac- 
corded to  the  consuls  in  the  first  centuries  of  the  Republic.     Mommsen,  Staats- 
recht, ii.  71. 


90  THE  SCIENCE  OF  JURISPRUDENCE 

called  jus  civile  in  the  special  and  narrower  sense  of  the  term, 
the  jus  proprium  civium  Romanorum.  Its  administrator  was 
known  as  the  praetor  qui  inter  cives  jus  dicit,  or,  in  the  collo- 
quial phrase  which  became  titular,  as  praetor  urbanus.  The 
jus  civile  was  first  codified  in  the  Twelve  Tables  and  its  original 
characteristics  were  formalism  and  rigidity.  Such  was  the  law 
which  the  praetor  urbanus  was  called  upon  to  apply  to  mat- 
ters in  dispute  between  Roman  citizens  themselves  through 
legal  formulas  involving  a  religious  element  and  for  that 

Available      reason  available  for  Romans  only.1    When  a  suit  was  com- 

oniy.  '  '  menced,  the  litigants  appeared  before  the  praetor  who  made 
a  preliminary  examination  in  order  to  ascertain  the  precise 
points  in  controversy.  After  hearing  the  statements  and 
counterstatements  of  plaintiff  and  defendant,  he  constructed  a 
brief  technical  outline  of  the  disputed  issues,  called  a  formula. 

Judex.  That  formula  was  then  put  into  the  hands  of  a  judex  (more 
like  a  referee  or  a  jury  of  one  than  a  modern  presiding  judge), 
who,  after  hearing  the  evidence  of  the  witnesses  and  the  argu- 
ments of  the  advocates,  returned  his  decisive  judgment  to  the 
praetor  who  appointed  him.  The  entire  proceeding  thus  car- 
ried on  by  the  praetor,  judex,  and  advocates  was  under  the 

Juris-  intellectual  guidance  of  the  jurisconsults,  the  makers  of  the 

scientific  law  literature  of  Rome,  who  were  regarded  as  law 
experts,  and  respected  and  resorted  to  as  such  by  all  con- 
cerned in  the  administration  of  justice.  Primarily  the  praetor 
was  a  great  statesman  or  politician  whose  final  function  was 
to  enforce  the  law ;  the  judex,  or  as  we  would  now  call  him,  the 
referee,  might  have  no  technical  knowledge  of  law  whatever. 
Under  such  conditions  the  unlearned  judicial  magistrates 
naturally  looked  for  light  and  leading  to  the  jurisconsults 

1  "The  personal  and  religious  laws  of  one  community  are  incapable,  in  ar- 
chaic society,  of  being  used  by  members  of  another.  .  .  .  Many  Roman 
legal  formulas  involved  a  religious  element,  and  for  that  reason,  we  may  be 
pretty  sure,  were  available  for  Romans  only."  Pollock,  Introduction  and 
Notes  to  Maine's  "Ancient  Law,"  p.  11. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  91 

who  instructed  them  through  their  responsa  prudentium, 
the  technical  name  given  to  their  opinions  as  experts,  which  pn 
were  promptly  recorded  on  tablets  by  their  students  or  dis- 
ciples. While  the  "answers  of  the  learned"  varied  a  good 
deal  at  different  periods,  they  always  consisted  of  explanatory 
glosses  on  authoritative  written  documents,  and,  at  first, 
were  exclusively  opinions  interpretative  of  the  Twelve  Tables. 
The  authors  of  this  defining  and  expanding  jurisprudence 
always  professed  the  most  profound  respect  for  the  letter  of 
the  code,  whose  full  meaning  they  were  ever  attempting  to 
bring  out  by  piecing  texts  together,  by  introducing  principles 
of  interpretation  derived  from  other  sources,  by  adjusting  principles 
the  law  to  states  of  fact  which  actually  presented  themselves,  potation, 
and  by  speculating  on  its  possible  application  to  others  that 
might  occur  thereafter.  Thus,  of  course,  were  educed  a  vast 
amount  of  canons  never  dreamed  of  by  the  compilers  of  the 
Twelve  Tables,  and  which  were,  in  truth,  rarely  or  never  to  be 
found  therein.  At  an  early  period  which  cannot  be  precisely 
fixed  it  became  the  custom  for  the  praetor  to  issue  an  annual  The  edict. 
proclamation  or  edict  in  which  he  embodied  the  system  of 
principles  upon  which  justice  would  be  administered  during 
his  official  term.  As  a  new  system  could  not  be  put  forth  for 
every  year,  each  succeeding  praetor  published  the  edict  of  his 
predecessor  with  such  additions  as  the  necessities  of  the 
moment  or  his  own  views  of  the  law  compelled  him  to  intro- 
duce. Thus  came  into  being  the  continuous  or  unbroken 
edict,1  which,  as  an  engine  of  law  reform,  was  simply  a  new 
method  of  superseding  the  civil  law  as  much  as  possible  by  an 
edictal  jurisprudence  fabricated  by  the  praetor  out  of  the 
principles  of  the  jus  gentium,  finally  assumed  by  the  Roman  its  reia- 
lawyers  to  be  the  lost  code  of  nature  by  which  man  was  gov- 


1  Cf.  Lenel,  Beitrage  zur  Kunde  des  praetorischen  Edicts  (Stuttgart,  1878), 
and  also  his  Das  Edictum  Perpetuum  (Leipzig,  1883)  ;  Karlowa,  Romische 
Rechtsgeschichte,  i.,  §  60;  Wlassak,  Edict  und  Klageform  (1882). 


92  THE  SCIENCE  OF  JURISPRUDENCE 

erned  in  a  primitive  state.  The  edict  was  the  "living  voice 
of  the  civil  law"; l  its  function  was  the  interpretation  of  the 
law  of  Rome  by  "  assisting,  supplementing,  and  even  correcting 
the  civil  law." 2  It  was  therefore,  in  its  wider  sense,  not  the  jus 
civile  of  Rome,  but  its  legitimate  modifications  expressed  in  what 
was  generally  known  as  magistrates'  law  (jus  honorarium) .  The 
writers  of  the  Institutes  of  Justinian  give  this  definition  of  the 
jus  kono-  honorary  law :  "  The  edicts  of  the  praetors  are  also  of  great 
defined.  authority.  These  edicts  are  called  honorary  law  because  the 
magistrates  who  bear  honors  in  the  state  have  given  them  their 
sanction.  The  curule  aediles  also  upon  certain  occasions  pub- 
lished their  edicts  which  became  a  part  of  the  jus  honorarium."3 
While  a  new  praetor  was  not  absolutely  bound  by  the  edict  of 
his  predecessor  which  he  could  repeat  or  alter  as  he  chose,  it 
became  the  custom  for  each  praetor,  on  taking  office,  to  repeat 
a  large  portion  of  the  edict  (the  edictum  tralaticium),4  and 
confine  himself  merely  to  additions  (nova  edicta,  novae  clausu- 
The  edict  as  lae).  By  the  time  of  Cicero 5  the  praetorian  edict  had  already 
faVfeform.  become  the  leading  organ  for  the  development  of  Roman  law. 
When  so  employing  it  the  praetors  showed  little  taste  for  the 
sudden  adoption  of  far-reaching  general  principles,  confining 
themselves  rather,  in  the  first  instance,  to  laying  down  rules 
for  a  perfectly  definite  case,  the  conditions  of  which  were 
clearly  understood.  As  the  praetorian  edict,  like  the  statutes, 

1  "Nam  et  ipsum  jus  honorarium  viva  vox  est  juris  civilis."      Marcian  in 
Dig.  1,  1,  8. 

3  "  Jus  praetorium  est  quod  prae tores  introduxerunt  adjurandi  vel  supplendi 
vel  corrigendi  juris  civilis  gratia  propter  utilitatem  publicam."     Papinian  in 
Dig.  1,  1,  7. 

*  II.  2,  7. 

4  In  technical  language  the  edict  was  perpetuum  (continuous)  et  tralaticium 
(transmitted).     Ascon.  In  Cornel.,  p.  58;  Cic.  In  Verr.  i.  44,  114. 

•  He  tells  that  in  his  later  years  the  Twelve  Tables  were  neglected  by  the 
boys  in  school,  who  were  directed  instead  to  the  praetor's  edict  for  their  first 
lessons  in  law.     De  Leg.  i.  5,  17;   ii.  23,  59.     See  also  Cic.  De  Invent,  ii.  22, 
67,  in  which  he  says  "  quo  in  genere  et  alia  sunt  multa,  et  eorum  multo  maxima 
pars,  quae  praetores  edicere  consuerunt."     Cf.  Mommsen,  Romische  Staatsrecht, 
i.  198,  note  3  (2d  ed.). 


EXTERNAL  HISTORY  OF  ROMAN  LAW  93 

was  interpreted  according  to  its  letter,  its  authors  preferred 
to  add  a  second  concrete  case  to  the  first,  a  method  which  had 
the  advantage  of  securing  accuracy  of  verbal  expression. 
Thus  a  regular  system  of  judge-made  law  grew  up  in  the 
praetorian  court,  which,  in  addition  to  the  statutory  and  cus- 
tomary law  already  in  force,  became,  in  point  of  fact,  one  of  the 
most  potent  factors  in  the  legal  system.  The  edictal  code  of 
private  law  thus  constructed  united  conservatism  to  a  ready 
capacity  for  change,  thus  combining  the  experience  of  the  past 
with  the  life  and  movement  of  the  present.  Although  the 
praetorian  law  in  the  form  it  assumed  in  the  edict  was  not, 
strictly  speaking,  law,  we  find  Cicero  declaring  that  even  in  his 
time  the  edict  was  felt  to  be  a  kind  of  law  (lex  annua).1 
While  the  praetorian  edict,  which  reached  its  climax  in  the 
last  century  of  the  Republic,  may  have  simply  served  at  first  its  climax 
the  purpose  of  giving  fuller  effect  to  the  jus  civile,  and  then  i^t  century 
of  supplanting  it,  in  the  end,  borne  along  by  the  current  of  the  of  RePublic- 
times,  boldly  assumed  the  function  of  reforming  it.  No  mat- 
ter whether  the  civil  law  of  Rome  was  expanded  or  supple- 
mented directly  by  the  edict  of  the  praetor  or  indirectly  by  the 
responses  of  the  jurisconsults,  the  practical  result  was  the  same 
—  the  deficiencies  of  an  archaic  and  unelastic  legal  system 
were  supplied  by  judicial  exposition,  by  judge-made  law. 
Such,  in  general  terms,  was  the  process  of  development 
through  which  Roman  law  passed  while  being  transformed 
from  the  local  law  of  the  city  of  Rome  to  the  universal  law 
of  the  Roman  Empire.  The  history  of  that  process  is  divided  Law  of 
into  two  great  epochs:  (1)  the  period  of  local  law  marked  by  becomes 
the  prevalence  of  the  jus  civile  which  was  rigid,  formal,  na-  law  of  . 

•  an  empire. 

tional;  (2)  the  period  of  universal  law,  the  period  of  the 
Empire,  marked  by  the  prevalence  of  the  jus  gentium,  which 
was  equitable,  free  from  formalism,  the  outcome  of  the  inter- 
mingling of  Greek  and  Roman  influences. 

1  "Qui  plurimum  tribuunt  edicto,  praetoris  edictum  legem  annuam  dicunt 
esse."     (In  Verr.  i.  42,  109.) 


94 


THE  SCIENCE  OF  JURISPRUDENCE 


The  praetor 
peregrinus 
and  the 
jus  gentium. 


Status  of 
aliens  in 
archaic  law ; 
Greek  ame- 
liorations. 


7.  In  242  B.C./  more  than  one  hundred  and  twenty  years 
after  the  creation  of  the  praetor  urbanus,  a  new  praetor  was 
appointed  at  Rome,  known  as  the  praetor  qui  inter  peregrinos 
jus  decit,  or,  in  short,  as  praetor  peregrinus,  whose  duty  it  was 
to  decide  cases  between  foreigners  (peregrini)  and  between 
Roman  citizens  and  foreigners.2  As  the  personal  and  religious 
laws  of  one  community  were  incapable,  in  archaic  society,  of 
being  used  by  members  of  another;  as  two  strangers  living 
under  different  laws  of  their  own  could  not  both  be  judged  by 
either  of  those  laws  any  more  than  by  Roman,  the  large  body 
of  foreigners  drawn  to  Rome  by  the  rapid  expansion  of  a 
commercial  civilization  was  necessarily  beyond  the  pale  of 
the  jus  civile  which  belonged  to  Romans  only.  Every  alien, 
i.e.  non-citizen,  was,  as  such,  absolutely  barred  from  the  use  of 
any  of  the  formal  juristic  acts  of  early  Roman  law.3  Athens 
ameliorated  similar  conditions  by  allowing  her  domiciled 
aliens  (/ierot^ot)  to  enjoy  her  laws  through  the  agency  of 
a  patron  (Tr/aoo-Tar?;?),  subject,  however,  to  a  stranger's  tax, 
and  to  military  service  by  land  or  sea.4  The  most  notable 
feature  of  this  liberal  policy,  which  also  prevailed  in  other 
commercial  Greek  states,  was  that  part  of  it  embodied  in 
international  conventions  providing  for  the  mutual  adminis- 
tration of  justice  to  resident  foreigners,  for  the  establishment 
of  mixed  tribunals,  or  even  for  the  grant  of  isopolity.5  Down 
to  about  250  B.C.  Rome  frequently  concluded  like  international 
and  commercial  treaties  with  other  states,  members  of  which 

1  The  date  is  not  absolutely  certain.     Livy  (Epit.  19)  says  it  was  512 ;  Lydus 
(De  Magister,  i.  38,  45)  says  it  was  507  rr.c.,  which  corresponds  to  510  of  the 
Varronian  era. 

2  Pomponius  tells  us  that  the  new  magistrate  derived  his  title  from  the  fact 
that  his  principal  duty  was  to  administer  justice  to  the  increasing  peregrin 
population.     Dig.  i.  2,  2,  28. 

3  "Mancipatio  as  well  as  nexum  was,  on  principle,  null  and  void,  if  one  of 
the  parties,  nay,  if  one  of  the  witnesses,  were  without  the  Roman  civitas." 
Sohm,  Institutes,  p.  39. 

4  Thuc.  III.  16.     Cf.  Plut.  c.  37. 

5  Arist.  Pol.  iii.  1.  3,  5.  10.     The  word  iffoiroXirtta  is  also  used  by  Plutarch 
(II.  300)  and  means  "equality  of  civic  rights." 


commercii. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  95 

were  permitted  to  engage  in  commerce  in  the  Roman  market. 
Thus  that  portion  of  the  Roman  law  known  as  the  jus  com- 
mercii was  granted  to  such  non-citizens  (peregrini)  as  possessed  Jus 
the  privileges  of  an  international  treaty  of  friendship.1    But 
all  this  changed  about  the  third  century  B.C.  when  Rome 
became  too  great  to  condescend,  except  in  quite  exceptional 
cases,  to  deal  with  other  powers  on  terms  of  equality  by  means 
of  treaties  of  friendship.    After  the  jus  commercii  was  thus 
withdrawn  as  a  general  rule  from  non-citizens,  the  doors  of  the 
jus  civile  were  again  closed  to  the  outer  world,  leaving  the 
bulk  of  aliens  whose  business  carried  them  to  Rome  without 
legal  capacity  under  the  jus  civik.     Out  of  that  condition  of 
things  grew  the  necessity  for  a  law  merchant  which  forced  the 
appointment  of  a  praetor  peregrinus  in  242  B.C.     Maine  con- 
tends that  the  jus  gentium  was  in  part  originally  a  market  Jus  gentium 
law,  and  grew  out  of  commercial  exigencies.2    The  attempt  ^wa  E 
has  been  made  heretofore  to  explain  the  process  through 
which  the  praetor  peregrinus,  in  his  effort  to  create  a  law  which 
could  be  applied  to  suitors  who  came  into  his  court,  drew 
from  the  codes  of  all  the  states  with  which  Rome  came  into 
commercial  contact  the  basic  principles  common  to  them  all. 
An  explanation  was  also  made  of  the  process  through  which  a 
broad  principle  of  Greek  philosophy  became  so  blended  with 
a  particular  branch  of  Roman  commercial  law  that  the  Anto- 
nine  jurisconsults  finally  assumed  the  position  that  the  jus 
gentium  and  the  jus  naturale  were  identical.8    As  an  eminent  Became 
jurist  has  lately  stated  it,  "  the  actual  jus  gentium  agreed  well  with  /L» 
enough  with  the  rules  of  natural  justice  or  natural  law  in  the  naturale- 
sense  of  the  Greek  philosophers,  so  far  as  these  could  be 

1  "The  jus  commercii  has  been  read  into  the  relations  of  Rome  with  Carthage 
as  depicted  in  Polybius's  second  treaty  (Polyb.  iii.  24.  12).  .  .  .     But  juris- 
diction here  may  have  been  the  work  of  some  international  court,  and  the 
jus  commercii,  without  the  jus  exulandi,  would  hardly  have  made  a  foreign 
immigrant  a  citizen  of  Rome. "     Greenidge,  Roman  Public  Life,  p.  6,  note  3. 

2  Village  Communities,  pp.  193-194. 
*  See  above,  pp.  33-35. 


96  THE  SCIENCE  OF  JURISPRUDENCE 

observed  in  practice.  Accordingly  the  Roman  lawyers, 
probably  working  on  Greek  materials  now  lost,  identified 
jus  gentium,  for  most  practical  purposes,  with  jus  naturale."1 
The  law  of  the  nations  (jus  gentium),  created  by  the  praetor 
peregrinus  with  the  aid  of  the  jurisconsults,  became  a  part  of 
the  private  law  of  Rome,  which  was  in  substantial  accordance 
with  the  private  law  of  other  nations,  more  especially  with 
that  of  the  Greeks,  which  would  naturally  predominate  along 
the  Mediterranean  seaboard.2  As  Voigt  has  described  it,  it 
was  "an  independent  international  private  law,  which,  as 
such,  regulated  intercourse  between  peregrins,  or  between 
peregrins  and  citizens,  on  the  basis  of  their  common  libertas."  * 
In  the  edict  of  the  praetor  peregrinus  the  jus  gentium,  which 
was  destined  not  only  to  shape  and  determine  the  legal  rights 
its  effect  on  of  aliens  at  Rome  but  also  profoundly  to  affect  the  develop- 
ment of  the  jus  civile,  acquired  a  written,  fixed,  and  tangible 
form.  The  praetorian  law  was  the  channel  through  which 
the  jus  gentium  gained,  in  the  first  instance,  admittance  into 
Roman  civil  law,  which  it  rapidly  permeated.  It  was  in  its 
nature  the  equitable  law  whose  growth  and  expansion,  in 
opposition  to  the  jus  strictum  of  ancient  tradition,  flowed  on 
with  an  ever  increasing  volume.  And  yet  its  growth  did  not 
suddenly  sweep  away  the  jus  civile.  As  a  system  of  equity 
it  was  gradually  elaborated  alongside  of  the  older  and  stricter 
law  in  a  process  of  development  extending  over  a  period  of 
more  than  five  centuries.  As  the  vitality  of  the  forms  of  the 
jus  civile  passed  away,  they  were  finally  discarded  and  their 
places  taken,  bit  by  bit,  by  portions  of  a  freer  and  more  equit- 
able law  worked  out  and  tested  before  their  final  incorporation 

1  Pollock,  Introduction  and  Notes  to  Maine's  "Ancient  Law,"  p.  12. 

2  And  yet  it  was  not  quite  what  the  Greeks  had  called  the  "common  law  of 
mankind,"  because  it  could  be  conceived  of  as  something  concrete,  resting  aa 
it  did  entirely  on  the  fact  that  men  observed  it. 

*  Jus  not.  ii.  661.  See  his  distinctions  between  jus  civile,  jus  gentium,  and 
jus  naturale,  as  the  systems  that  applied  respectively  to  the  citizen,  the  freeman, 
and  the  man.  Comp.  Cic.  De  Orat.  i.  13,  56. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  97 

into  the  organism  of  Roman  law.  The  praetorian  edict  was 
the  engine  of  reform  through  which  the  harsh  rigors  of  the 
jus  civile  were  displaced  slowly  and  cautiously  by  the  jus 
aequum,  a  body  of  principles  minutely  elaborated  and  care- 
fully weighed  in  all  their  details.  The  praetors  were  not  in- 
clined suddenly  to  adopt  far-reaching  general  principles. 
They  preferred  rather,  in  the  first  instance,  to  lay  down  rules 
for  a  perfectly  definite  case,  the  conditions  of  which  were 
clearly  understood.  The  next  praetor  might  then  take  another 
step  in  advance  by  adding  some  further  clause  to  the  edict  of 
his  predecessor.  While  the  praetor  had  no  power  to  legislate, 
he  might  grant  or  refuse  an  action,  the  old  action  at  law 
(legis  actio)  being  confined  within  certain  inflexible  formulae 
which  had  been  developed  by  the  practice  of  the  courts  in 
conformity  with  the  words  of  the  statute.  All  the  magistrate 
could  do  was  to  grant  or  disallow  such  an  action.  Therefore 
a  great  relaxation  took  place  when  in  matters  affecting  pere-  superseded 
grini  a  custom  grew  up  for  the  praetor  to  devise  formularies 
of  action  (formulae)  which  bound  the  judex  in  his  decision. 
The  convenience  of  this  procedure  extended  its  use  to  almost 
all  cases,  and  by  the  lex  Aebutia,  of  uncertain  date,  the  simpler 
formulary  procedure  almost  wholly  replaced  the  more  com- 
plicated provisions  of  the  legis  actiones.*  The  formula  was  a 
conditioned  acquittal  or  condemnation,  a  written  precept 
(formula)  being  addressed  by  the  magistrate  to  the  judex, 
containing  an  authoritative  statement  of  the  issue  in  dispute, 
together  with  the  principles  on  which  the  judex  was  to  decide  it.2 

1  "Per  legem  Aebutiam  et  duas  Julias  sublatae  sunt  istae  legis  actiones; 
effectumque  est  ut  per  concepta  verba,  id  est,  per  formulas,  litigaremus. " 
Gaius,  Institutes,  iv.  30.  See  also  Gell.  xvi.  10.  8.  The  precise  date  of  the  lex 
Aebutia,  mentioned  only  twice  by  ancient  writers,  is  not  known.  It  was  prob- 
ably enacted  soon  after  the  establishment  of  the  peregrin  praetorship.  Cf. 
Padelletti,  Storia  del  diretto  romano  (Florence,  1878),  pp.  251.  sq. ;  Appleton, 
Nouv.  Rev.  Hist.  ix.  489 ;  Voigt,  Romische  RechtsgeschicMe,  i.,  Beil.  6 ;  Girard, 
Droit  Romano,  pp.  36,  971. 

z  "  The  judex  by  his  finding  changed  the  conditioned  sentence  into  one  that 
was  categorical  and  final."     Greenidge,  Roman  Public  Life,  p.  205. 
H 


98 


THE  SCIENCE  OF  JURISPRUDENCE 


Caracalla's 
extension 
of  the 
franchise. 


Pontifices 
and  their 
responses 
prior  to 
Augustus. 


Pontifices 
as  law 
experts. 


This  reform,  vitally  important  in  itself,  is  also  important 
as  an  indication  of  the  wider  change  that  was  sure  to  come. 
After  Caracalla  had  conferred  the  Roman  franchise  on  all 
citizens  of  the  Empire  there  was  but  one  nationality  within 
it,  —  the  Roman.  Thus  the  Roman  nation  became  coexten- 
sive with  that  portion  of  mankind  upon  which  civilization  of 
Western  antiquity  rested,  and  from  the  fourth  century  on- 
ward the  tendency  to  shift  the  center  of  gravity  to  the  Eastern, 
in  other  words  to  the  Greek  portion  of  the  Empire,  became 
more  and  more  pronounced.  As  Sohm  has  graphically  ex- 
pressed it:  "It  was  no  longer  the  traditions  of  Rome  and 
Italy,  but  the  views  and  requirements  of  Greek  provincialism 
that  surrounded  and  influenced  the  emperor  of  Constantinople. 
The  provinces  had  ousted  the  old  premier  country,  Greece 
had  triumphed  over  Rome.  And  so  it  came  to  pass  that  the 
jus  gentium  finally  displaced  the  old  jus  civile"  1 

8.  From  what  has  now  been  said  it  appears  that  the 
administration  of  civil  law  at  Rome  rested  upon  two  basic 
principles:  (1)  No  matter  whether  the  supreme  judicial 
authority  was  vested  in  king,  consul,  or  praetor,  it  was  subject 
to  delegation  to  a  private  citizen,  chosen  for  each  individual 
case  as  it  arose  (and  authorized  by  a  commission  from  the 
delegating  power),  instead  of  to  permanent  officials  trained 
for  the  purpose;  (2)  the  person  to  whom  such  judicial  power 
was  so  delegated  was  expected  to  act  upon  advice,  given  in 
reference  to  the  facts  of  the  particular  case  by  an  expert  in 
the  science  of  law.  As  law  and  religion  were  hopelessly  inter- 
mingled at  the  outset,  Roman  jurisprudence  begins  with  the 
pontifices  who  acted  as  skilled  legal  advisers  in  the  courts, 
first  of  the  king,  then  of  the  consul,  and  lastly  of  the  praetor.2 

1  Institutes,  pp.  81-82. 

2  For  two  hundred  years  (509-304)  the   knowledge  of   the   forms  of  pro- 
cedure, the  legis  actiones,  was  open  to  the  patrician  pontiffs  only.     Pompon. 
in  Dig.  i.  2,  2,  6.     Livy  (ix.  46.  5)  goes  so  far  as  to  speak  of  the  law  as  "  in 
penetralibua  pontificum  repositum."     According    to  the  historians,  law  was  a 


EXTERNAL  HISTORY  OF  ROMAN  LAW  99 

A  knowledge  of  the  letter  of  the  law  and  of  its  technical  appli- 
cation, interpretation,  and  utilization  was  originally  confined 
to  the  college  of  pontifices  and  was  preserved  and  handed 
down  by  tradition  and  by  instruction  of  the  new  members 
who  joined.  The  early  legal  opinions  (responsa,  decreta) 
of  the  college,  which  formed  the  basis  of  the  existing  practice,  college  as 
were  preserved  in  the  archives  of  the  pontifices,  to  which  none  authority- 
but  members  of  the  college  had  access,  and,  as  a  matter  of 
fact,  the  judges  were  bound  thereby.  While  the  pronounce- 
ment of  the  judgment  of  the  judge  followed  as  a  matter  of 
form,  the  delivery  of  the  pontifical  responsa  virtually  decided 
the  suit.1  The  struggle  for  publicity  which  culminated  in 
the  Twelve  Tables  and  which  secured  a  definition  of  the  rules 
of  procedure  for  all  civil  actions,  such  as  the  summons  of 
parties  and  witnesses  and  the  length  of  the  trial,  failed  to  force 
a  revelation  of  the  forms  of  action ;  these  remained  hidden  with 
the  pontiffs.  We  learn  from  Pomponius  2  that  no  sooner  was 
the  decemviral  code  published  than  the  necessity  was  felt  for 
its  interpretation,  and  for  the  preparation  by  skilled  hands  of 
forms  of  action  by  which  its  provisions  might  be  made  effec- 
tual. As  these  duties  fell  to  the  pontiffs  the  college  annually 
appointed  one  of  its  members  to  be  the  adviser  of  private 
parties  (constituebatur,  quis  quoque  anno  praeesset  privatis) 
and  of  the  judices  in  such  matters.  The  mystery  surrounding  its  myster- 
the  occult  science  of  the  pontiffs  (interpretatio)  seems  to  have  by" 
been  first  dispelled  by  Flavius,  secretary  of  Appius  Claudius  304  B-c> 
Caecus,  who  in  304  B.C.  divulged  a  formulary  of  actions  (legis 
actiones)  in  the  shape  which  the  pontiffs  had  given  them;8 

monopoly  of  the  patricians  down  at  least  to  the  middle  of  the  fifth  century 
of  the  city.  As  to  the  original  constitution  of  the  pontifical  college,  see  Clark, 
Early  Roman  Law,  pp.  90,  91,  92. 

1  Cf.  Mommsen,  Romisches  Staatsrecht,  ii.  46,  48.      As  to  early  Roman  law, 
see  also  P.  Jors,  Romische  Rechtswissenschaft  zur  Zeit  der  Republik  (1888). 

2  Dig.  i.  2,  2,  6.     See  Bekker,  Aktionen,   i.  68,  as   to  the   functions   of  the 
pontiffs  in  settling  styles  of  actions  upon  the  Tables.     And  also  Voigt,  Rom. 
R.G.  1,  p.  27 ;  Cuq,  Tnst.  Jurid.,  p.  145  sq. 

*  Liv.  ix.  46;  Cell.  vii.  9;  Cic.  Pro  Mur.  c.  11. 


100 


THE  SCIENCE  OF  JURISPRUDENCE 


tnria  Tri- 
pertita  of 
Aeliua. 


Cato,  the 
younger, 
152  B.C. 


Q.  Mucius 
Scaevola, 
100  B.C. 


and  about  254  B.C.  Tiberius  Coruncanius,  the  first  plebeian 
pontifex  maximus,  proclaimed  his  readiness  to  give  public 
information  on  legal  questions  to  all  who  desired  it.1  Some 
fifty  years  later  the  publication  of  the  Jus  Aelianum  —  a 
collection  including  the  Twelve  Tables,  the  interpretatio 
down  to  date,  and  the  current  styles  of  action  —  made  a 
knowledge  of  law  as  much  the  heritage  of  the  laity  as  of  the 
pontifical  college.  Here  we  find  the  first  attempt  to  set 
forth  the  pontifical  jits  civile  in  a  literary  form  in  a  work 
called  also  the  commentaria  tripertita 2  by  Sextus  Aelius  Paetus 
Catus,  who  was  consul  198  B.C.  While  a  technical  knowl- 
edge of  law  was  thus  passing  out  of  the  hands  of  the 
pontiffs  and  becoming  an  element  in  national  culture,  the 
scientific  methods  of  the  Stoic  philosophy  were  beginning 
to  operate  as  an  ennobling  influence.  Under  such  condi- 
tions we  find  M.  Porcius  Cato,  the  younger,  who  died 
152  B.C.,  making  a  deliberate  attempt  to  cast  the  rough 
materials  of  law  into  a  systematic  form  by  extracting  from 
the  crude  legal  rules  as  presented  by  history  the  general 
principles  underlying  them.3  A  half  century  later  Quintus 
Mucius  Scaevola,  the  younger,  pontifex  maximus,  wrote  his 
great  work  on  the  jus  civile  which  Pomponius  says  was  the 
first  systematic  treatise  on  that  subject.4  In  the  eighteen 
books  of  this  famous  and  enduring  effort  the  author,  depart- 
ing from  the  traditional  method  of  merely  interpreting  the 
words  of  statutes  or  of  formulae  relating  to  procedure  or  juris- 
tic acts,  arranged,  for  the  first  time,  the  positive  private  law 

1  Cic.  De  Orat.  iii.  33,  §  134 ;  Pompon,  in  Dig.  i.  2,  1,  2,  35,  38. 

2  The  "cradle  of  juristic  literature"  (qui  liber  veluti  cunabula  juris  continet). 
Pompon,  in  Dig.   i.  2.  38.      Cf.  Jors,  Romische  Rechtswissenschaft  zur  Zeit  der 
Republik,  pp.   104  ff. ;    Voigt,    Ueber  das  Aelius-und  Sabinus-System  (Leipzig, 
1875) ;   Cuq,  Inst.  Jurid.  (Paris,  1891),  p.  474,  note  5. 

1  Tit.  Dig.  de  regula  Catoniana,  xxxiv.  7.  See  Roby,  Introduction  to  the 
Study  of  Justinian's  Digest,  p.  xcv. 

«  Pompon.  l.c.,  §  41.  He  was  the  son  of  Publius  Mucius,  the  cousin  of  Quin- 
tus Mucius  Scaevola,  the  augur,  who  in  his  old  age  gave  Cicero  and  his  friend 
Atticus  their  first  lessons  in  law. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  101 

of  Rome  according  to  the  nature  of  the  subjects  dealt  with, 
thus  laying  a  permanent  foundation  for  the  labors  of  his 
successors.  Rising  above  the  mere  discussion  of  isolated 
cases  or  questions  of  law,  he  began  the  development  of  legal 
science  by  defining  in  clear  and  definite  terms  the  nature  of 
such  legal  institutions  as  wills,  legacies,  guardianships,  sales, 
hiring,  and  the  like,  and  their  various  genera.  Through  the 
definition  and  employment  of  general  legal  conceptions  he 
was  the  first  to  lift  Roman  private  law  above  all  the  com- 
plexities of  detail.1  Thus  as  the  Republican  period  drew  to 
a  close  2  the  responses  of  the  pontifices,  by  which  the  develop- 
ment of  law  had  been  mainly  carried  on  during  the  earlier 
part  of  it,  began  to  assume  a  form  which  must  have  been  fatal 
to  their  further  expansion.  By  such  treatises  as  that  of  Scae- 
vola  they  were  systematized  and  reduced  to  compendia.  In  Responses 
the  writings  of  Cicero  can  be  traced  a  growing  dislike  for  the  compendia, 
older  methods  as  compared  with  the  more  active  instruments 
of  legal  innovation.  By  this  time  the  edict ,  or  annual  proclama- 
tion of  the  praetor,  had  gained  credit  as  the  principal  engine  of 
law  reform,  while  the  great  group  of  statutes  known  as  the 
Leges  Cornelia  had  demonstrated  what  rapid  improvements 
could  be  effected  by  direct  legislation.3  Such  were  the  influ- 
ences by  which  the  pontifical  responses  were  undermined  prior 
to  the  time  of  Augustus,  who  dealt  the  final  blow  by  limiting 
to  a  few  jurisconsults  the  right  of  giving  binding  opinions  on  Right  to 
cases  submitted  to  them.4  Henceforth  all  response,  were  to  SmitS^y 

Augustus. 

1  As  to  Scaevola's  work,  see  Kriiger,  G.  d.  Quellen  des  Rdm.  R.,  pp.  59,  60; 
Burckhardt,  Z.S.  der  Sav.  St.,  ix.  286  ff. 

2  Servius  Sulpicius,  a  contemporary  of  Cicero,  born  about  106  B.C.,  is  said 
to  have  been  the  greatest  jurist  of  the  Republican  period.     See  Cic.  Brutus,  40- 
42.     (As  to  his  works,  see  Pompon.  I.e.,  43,  44.)     His  pupil  was  Aulus  Ofilius, 
often  called  the  Tribonian  of   the    Republic,   who  is  supposed  to  have   been 
consulted  by  Julius  Caesar  as  to  his  great  but  unrealized  plan  for  a  codifica- 
tion of  Roman  law.     On  that  subject,  see  Sanio,  Rechtshistorische  Abhandl.  a. 
Studien  (Konigsberg,  1845),  pp.  68-126. 

*  Cf.  Maine,  Ancient  Law,  p.  39. 

*  Pompon.  I.e.,  47,  48 ;  Cell.  xiii.  13.  1 ;   Gaius,  i.  7 ;  Just.  Institutes,  i.  2,  8. 


102  THE  SCIENCE  OF  JURISPRUDENCE 

be  given  ex  autoritate  ejus  (principis),  or,  in  other  words  with 
the  sanction  of  the  emperor  himself.1  Through  the  emperor 
as  a  medium  persons  who  were  not  pontifices  could  now  deliver 
authoritative  responsa,  under  permission  of  one  who  was 
himself  pontifex  maximus.  His  successor,  Tiberius,  issued 
formal  commissions  to  the  same  effect.2  Thus  the  power  which 
the  pontifical  college  had  for  so  long  a  time  wielded  in  the 
expansion  of  the  jus  civile  definitely  passed,  together  with  the 
science  of  jurisprudence,  into  the  hands  of  laymen  who,  with 
the  princeps  at  their  head,  were  to  dominate  its  further  de- 
velopment.3 Within  the  privileged  order  of  "authorized" 
jurists,  whose  attachment  to  the  head  of  the  state  brought 
the  imperial  power  into  fresh  relief,  there  seems  to  have  been 
an  inner  circle,  consisting  of  the  most  learned  and  distinguished 
of  those  who  had  received  the  imperial  authorization,  from 
which  the  emperor  was  apparently  accustomed  to  select  such 
great  judicial  officers  as  the  praetorian  prefect,  the  members 
of  the  imperial  council,  possibly  the  chief  judicial  magistrates 
of  the  provinces,  and  in  later  times  the  quaestor  also.  The 
career  of  the  jurist  thus  continued  to  be,  though  in  a  somewhat 
altered  form,  one  of  the  main  avenues  to  power  and  distinction, 
juris-  9.  When  the  members  of  the  new  order  of  lay  jurisconsults 

the8  Empire  *na*  gathered  around  Augustus  are  viewed  not  simply  as  law 
and  scien-     experts  but   as  juridical  statesmen  engaged  in   the  actual 

tmc  law 

literature,      administration  of  government,  it  is  easy  to  understand  why  it 
was  that  they  soon  divided  into  the  two  famous  sects  or  schools 

1  Literally,    "under   the  guarantee   of  the   emperor."     Cf.   Pernice  in   the 
Juristische  Abhandlungen,  "  Festgabe  fur  Beseler  "  (Berlin,  1885),  p.  70;  Sohm, 
Institutes,  §  15 ;    Kriiger,  Geschichte  der  Quellen  des  Romischen  Rechts,  §  15. 

2  Bryce,  Studies  in  History  and  Jurisprudence,  p.   678.     See  also  Bremer, 
Rechtslehrer  u.   Rechtsschulen  im  rSm.   Kaiserreich   (Berlin,    1868),   pp.   8-15; 
Machelard,  Observations  sur  les  responsa  prudentium,  Paris,  1871. 

3  The  jus  respondendi  was  the  privilege  of  delivering  "opinions"  binding  on 
the  judge,  both  on  the  magistrate  and  the  appointed  judex  privatus.      The 
"opinion"  of  a  privileged  jurist  was  required  to  be  in  writing  and  sealed,  and 
the  judge  to  whom  it  was  submitted  in  due  form  was  bound  to  follow  it,  unless 
a  conflicting  opinion  of  another  privileged  jurist  was  also  submitted. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  103 

whose  antagonisms  grew,  no  doubt,  out  of  conflicting  political 
theories.    At  the  head  of  those  who  warmly  supported  the 
imperial   despotism   stands  Capito,  a  natural   conservative,  Capito  and 
around  whose  name  clusters  little  that  is  definite  or  tangible. 
Not  enough  is  known  of  him  as  a  jurist  to  enable  us  to  speak 
with  any  certainty  as  to  his  opinions,  as  he  is  rarely  referred 
to  in  the  texts.     He  has  lived  on  simply  as  the  founder  of  a 
school  which  took  its  name  from  his  successor,  Sabinus,  Sabinus. 
claimed  as  a  native  of  Verona,  the  merits  of  whose  works  are 
attested  by  the  fact  that  commentaries,  which  form  a  con- 
siderable portion  of  the  Digest,  were  written  upon  them  by 
jurists  of  the  first  rank.     Sabinus,  who  is  said  to  have  earned 
his  living  by  giving  legal  instruction,1  seems  to  have  been  the 
first  to  organize  a  school  of  law.    At  the  head  of  those  who 
opposed   the   Sabinians   stands   Labeo,   whose    independent  Labeoand 
spirit  gave  him  a  strong  leaning  toward  the  older  republican- 
ism.    His  successor,  Nerva,  the  devoted  friend  of  Tiberius 
and  the  grandfather  of  the  emperor  Nerva,  was  in  turn  suc- 
ceeded by  Proculus,  who,  as  the  leading  disciple  of  Labeo,  Procuius. 
gave  his  name  to  the  school  founded  by  his  master.     The 
works  of  Proculus,  or  commentaries  on  them,  are  frequently 
cited  in  the  texts.    There  is  foundation  for  the  view  that  the 
two  opposing  schools,  generally  known  as  Sabinians  and  Pro- 
culians,  were  rival  teaching  halls  (stationes  jus  publice  docen-  Rival  teach- 
tium),2  as  we  are  expressly  told  that  Nerva  and  Proculus  were  "^ 
Labeo's  pupils,  while  Masurius  Sabinus,  Javolenus  Priscus, 
and  Julian  are  all  mentioned  as  professors  as  well  as  practi- 
tioners.    Certain  it  is  that  Labeo,  whose  extraordinary  influ-  Works  of 

Labeo. 

1  "Huic  (Sabino)  nee  amplae  facilitates  fuerunt,  sed  plurimum  a  suis  audi- 
toribus  sustentatus  est."     Pompon,  in  Dig.  i.  2,  2,  50. 

2  Cell.  xiii.  13.  1.     Cf.  Bremer,  Rechtslehrer  und  RechtsschvZen  im  romischen 
Kaiserreich,  p.  68 ;   Kriiger,  Geschichte  der  Quellen,  pp.  138,  148 ;   Pernice,  M . 
Antistius  Labeo,  vol.  i.  (1873),  and  vol.  ii.   (1878);  Roby,   Introduction,  ch.  ix; 
Karlowa,  Rdm.  R.G.  i.  662  sq.,  677  sq. ;  Sohm,  Institiites,  §  15 ;  Mascovius,  De 
Sectis  Sabinianor  et  Proculianor,  Leipzig,   1728;   Dirksen,  "Ueber  die  Schulen 
der  Rom.  Juristen,"  in  his  Beitrdge  zur  Kunde  des  Rom.  Rechts,  Leipsic,  1825. 


104  THE  SCIENCE  OF  JURISPRUDENCE 

ence  on  the  science  of  jurisprudence  is  attested  by  the  large 
number  of  quotations  from  his  works  that  survive,  was  by 
far  the  greatest  of  the  two  founders.  From  Pomponius  and 
Aulus  Gellius  we  learn  that  his  broad  culture  embraced  a 
knowledge  of  history,  dialectics,  and  philosophy  according 
to  the  teaching  of  the  Stoics.  One  of  his  most  celebrated 
writings  is  his  Libri  TriOav&v  (Probabiliwri) ,  a  theoretical 
treatise  concerning  a  number  of  legal  principles  of  universal 
validity  drawn  from  practical  life,  which  were  epitomized  and 
annotated  two  centuries  later  by  Paulus.  In  addition  to  his 
more  practical  treatise  (Libri  Posteriorwri)  on  various  branches 
of  the  jus  civile,  abridged  by  Javolenus,  Labeo  was  the  author 
of  commentaries  on  the  Twelve  Tables,  the  pontifical  law,  the 
edicts  of  urban  and  peregrine  praetors,  as  well  as  a  collection 
of  responses.  He  is  said  to  have  passed  half  his  year  in  Rome 
giving  instruction  to  his  disciples  and  advice  to  his  clients,  the 
other  half  in  the  country  composing  his  famous  treatises.  He 
was  fortunate  in  appearing  in  the  early  days  of  the  Empire 
when  the  progress  of  legal  reform  was  rapidly  advanced  by  the 
brilliant  development  of  juridical  literature,  by  the  authority 
given  by  the  emperor  to  certain  selected  jurists  to  deliver 
binding  opinions,  and  by  the  substitution  of  the  senate  for 
independ-  the  popular  assemblies  as  the  organ  of  legislation.  In  his 
hb°opiniona.  expositions  of  the  law  he  seems  to  have  been  as  independent 
as  in  his  political  opinions,  criticising  freely  the  doctrine 
even  of  those  who  had  been  his  instructors  in  jurisprudence. 
By  his  various  new  classifications,  divisions,  and  definitions, 
he  undoubtedly  aided  in  placing  both  the  theory  and  practice 
Probable  of  law  on  a  clearer  and  firmer  footing.  He  is  probably  the 
division0  of  author  of  the  division  of  all  actions  into  actiones  in  rein  and 
actiones  in  personam,  a  division  which  has  affected  all  juristic 
thought  in  matters  of  private  law  down  to  the  present  time. 
As  an  "  analogist "  his  method  was  to  trace  all  that  was  normal, 
all  that  was  united  by  a  common  underlying  conception,  in 


EXTERNAL  HISTORY  OF  ROMAN  LAW  105 

order  that  he  might  in  that  way  bring  positive  law  under  the 
control  of  the  art  of  dialectics.1    Thus  he  was  well  qualified 
for  the  task  of  boldly  grasping  and  casting  into  definite  shape 
the  many  generally  recognized  principles  of  law  then  in  a 
plastic  form,  which  were  awaiting  some  one  who  could  give 
them,  through  terse  and  vigorous  expression,  precise  and  HU  precise 
authoritative  definition.    Tradition  subsequently  traced  the  tativ^de'a-' 
opposition  between  the  schools  back  to  the  conflicting  political  mtlons- 
theories  of  their  founders,  Capito  and  Labeo,  as  defined  here- 
tofore.   While  the   followers  of  the  former  seem  to  have 
advocated  the  progressive  development  of  Roman  law  in  such 
a  way  as  to  free  it  from  the  rigors  of  the  older  formalism,  the 
followers  of  the  latter  were  inclined  to  abide  by  traditional 
rules,  though,  in  so  doing,  they  often,  perhaps,  sacrificed  the 
spirit  to  the  letter  of  their  master's  teachings. 

The  beginnings,  early  in  the  second  century,  of  what  is  Mission  of 
generally  known  as  "  classical  jurisprudence  " — whose  mission  jurispru- 
it  was  to  reconcile  the  conflict  between  the  two  schools  through  dence-" 
the  fusion  into  one  harmonious  whole  of  the  jus  civile  and  the 
jus  honorarium  with  the  new  imperial  law  —  are  associated 
with  the  great  names  of  Celsus,  Salvius  Julianus,  Pomponius, 
Africanus,  Gaius,  and  Q.  Cervidius  Scaevola.  Celsus,  who 
laid  the  foundations  in  his  Digestae  in  thirty-nine  books,  was  a 
follower  of  Proculus  and  died  probably  in  the  reign  of  Hadrian. 
He  was  succeeded  by  an  eminent  jurist  of  the  Sabinian  school,2 
Salvius  Julianus,  by  birth  an  African,  who,  under  Hadrian 
and  Antoninus  Pius,  filled  the  offices  of  praetor,  consul,  and 
praefectus  urbi,  and  was  for  a  long  time  the  leading  spirit  in 
the  imperial  council.  To  him  Hadrian  intrusted  the  task  of 
consolidating  the  edict  whereby  a  code  of  mingled  law  and 
practice  which  had  been  slowly  growing  up  was  put  in  a  perma- 

1  Cf.  Schanz  in  the  Philologus  (1883),  pp.  309  ff. :  "Analogisten  u.  Anomaliaten 
im  romischen  Recht;"  Sohm,  Institutes,  §§  15,  39. 

3  Pomponius  (in  Dig.  1.  2,  47-52)  tells  us  that  in  his  time  he  was  the  head  of 
that  school.  Cf.  Buhl,  Salvius  Julianus,  i.  (Heidelb.,  1886),  11-134. 


106  THE  SCIENCE  OF  JURISPRUDENCE 

nent  form.  The  outcome  was  confirmed  by  a  decree  of  the 
senate  which  was  introduced  by  a  speech  from  the  emperor, 
who  declared  that  henceforth  it  should  be  a  standing  edict 
(edictum  perpetuwri),  and  that  new  points  should  be  decided 
by  analogy  to  its  provisions.1  Thus,  as  Gibbon  remarks, 
"instead  of  the  Twelve  Tables  the  perpetual  edict  was  fixed 
as  the  invariable  standard  of  civil  jurisprudence."  2  Julian's 

His  greatest  undertaking,  however,  was  his  Digesta,  in  ninety  books, 

to  which  he  devoted  the  best  part  of  his  life.  In  that  work, 
dealing  with  both  civil  and  praetorian  law,  he  extended  the 
arrangement  of  the  praetorian  edict,  adopted  by  Celsus,  to  the 
exposition  of  the  entire  subject,  illustrating  his  doctrines  by 
hypothetical  cases  while  stating  the  general  rule  applicable 
to  each  with  all  the  force  of  a  convincing  aphorism.  In  the 
entire  list  of  Roman  jurisconsults  no  one  perhaps  can  be  found 
whose  dicta  are  more  frequently  quoted  either  by  contempo- 
raries or  successors.  Among  those  who  surrounded  Julian, 

Sextus  working  toward  a  common  end,  was  Sextus  Pomponius,  whose 
best  known  production  is  his  Enchiridion,  a  long  passage  from 
which  is  preserved  in  the  Digest,3  in  which  the  author  outlines 
the  external  history  of  Roman  law  from  the  foundation  of 
the  city  to  the  time  of  Hadrian.  While  his  voluminous 
commentary  on  the  edict  is  not  excerpted  directly,  his  read- 
ings on  Quintus  Mucius  Scaevola  were  utilized  by  the  jurists 
of  the  Severan  period,  and  drawn  on  to  some  extent  by  the 
commissioners  of  Justinian,  as  were  also  his  writings  on  Sa- 
binus,  and  his  Epistulae,  which  seem  as  a  general  rule  to  have 

1  If  any  provision  was  ambiguous,  it  could  only  be  settled  upon  appeal  by 
an  imperial  rescript.     The  emperors  did  not  begin  to  interfere  in  that  way  to 
any  perceptible  extent  with    the    administration  of  justice  until  the  time  of 
Hadrian.     Cf .  Karlowa,  Rom.  R.G.  i.  630 ;    Kriiger,  G.  d.  Qudlen  d.  Rom.  R., 
p.  94 ;   Bremer,  in  the  Gottinger  Gelehrte  Anziegen,  1889,  p.  430. 

2  Decline  and  Fall,  ch.  44. 

3  Pompon,   lib.   sing.   Enchiridii,    in  Dig.   1,  2,  2.     As  to  the  opinion  that 
it  is  to  some  extent  corrupt,  see  Osann,  Pompon,  de  origine  juris  frag.,  Giessen, 
1848.     As  to  its  possible  indebtedness  to  Varro,  see  Sanio,  in  his  Varroniana  in 
d.  Schriften  d.  Rom.  Juriaten,  Leipsic,  1867. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  107 

been  more  complete  and  critical  than  was  usual  in  the  responsa 
of  authorized  counsel.  Another  and  perhaps  younger  friend 
of  Julian's  was  the  rugged  and  weighty  Sextus  Caecilius  Sextus 
Africanus,  who,  while  acute  and  exact,  was  often  so  obscure 
as  to  provoke  the  comment  "  Lex  Africani,  ergo  difficilis."  His 
principal  works  were  several  books  of  Questions  (quaes- 
tiones),  liberally  used  by  the  commissioners  of  Justinian,  and 
his  still  more  numerous  Epistolae,  more  sparingly  drawn  upon. 
The  fact  that  the  answers  to  cases  stated  interrogatively  in 
the  Questions  are  often  connected  by  a  verb  in  the  third  per- 
son has  given  rise  to  the  conclusion  that  Africanus  expressed 
therein  not  his  own  opinions  but  those  of  some  other  jurist,  prob- 
ably Julian.1  Of  the  personal  history  of  Gaius,  who  flourished  Gaius. 
as  a  professor  of  law  under  Antoninus  Pius  and  Marcus  Aurelius, 
dying  after  180  A.D.,  we  know  nothing  that  is  either  clear  or  defi- 
nite. While  some  eminent  authorities  maintain,  from  the  inter- 
nal evidence  of  his  writings,  that  he  must  have  been  a  provin- 
cial, and  probably  an  Asiatic,2  others  claim  as  decidedly  that 
he  lived  at  Rome.3  Mommsen  suggests  that  he  was  a  law  pro- 
fessor at  Troas,  in  the  province  of  Asia,  and  that  he  was  familiar 
with  the  ordinary  language  of  the  Greeks  as  well  as  with  then* 
writings.4  Although  of  such  repute  in  the  fifth  century  as 

1  See  Kriiger,  Gesck.  der  Quellen,  §  23,  note  26. 

*  E.g.  Mommsen,  "Gaius  ein  Provincialjurist, "  in  Bekker  und  Muther'a 
Jahrb.  iii.  (1859),  1  sq. ;  Kuntze,  Der  Provincial  jurist  Gaius  tnssenschaftlich 
abgeschatzt,  Leipzig,  1883. 

1  E.g.  Huschke,  in  the  Z.  f.  R.G.  vii  (1868),  161  sq.,  and  in  the  introduction 
to  the  5th  edition  of  Gaius. 

4  Cf.  Roby  (Introduction  to  the  Study  of  Justinian's  Digest,  etc.),  p.  175, 
who  quotes  Mommsen.  He  refers  to  the  fact  that  his  praenomen  only  was  used 
in  accordance  with  Greek  custom.  The  fact  that  he  is  not  cited  as  Gaius  by 
any  of  the  classical  jurists  has  been  accounted  for  by  the  suggestion  that  he 
had  another  name  or  names  by  which  he  was  known.  Cf.  Puchta,  Institutionen, 
§  99,  note  cc. ;  Huschke's  preface  to  his  5th  edition  of  Gaius.  Another  suggestion 
is  that  he  never  obtained  the  jus  respondendi,  and  that  he  never  held  public  office. 
For  that  reason  Mr.  Goudy,  in  his  excellent  and  popular  edition  of  Muirhead, 
concludes  that  "Gaius,  in  short,  was,  in  all  probability,  as  has  been  frequently 
said,  merely  a  successful  writer  and  teacher  of  law  either  at  Rome  or  in  Asia 
Minor ;  most  probably  a  native  of  Asia  Minor,  who  wrote  and  taught  at  Rome." 
Appendix,  p.  432. 


108 


THE  SCIENCE  OF  JURISPRUDENCE 


Jnatitu- 
tionum  com- 
mentarii 
quattuor. 


Niebuhr's 
discovery 
at  Verona, 
1816. 


to  be  one  of  the  five  jurists  put  before  all  others  in  the  Valen- 
tinian  Law  of  Citations,1  it  does  not  appear  that  the  official 
right  to  deliver  responsa  was  ever  conferred  on  him,  despite 
which  fact  he  enjoyed  in  the  courts  of  law  an  authority  equal 
to  that  of  Paulus  or  Papinian.  His  famous  work  was  his 
Institutionum  commentarii  quattuor,  whose  style  has  delighted 
all  subsequent  ages  by  a  fluency  and  lucidity  worthy  of  a 
Greek.  It  was  adopted  as  a  model  by  all  subsequent  writers 
of  legal  text-books  and  upon  it  was  founded  in  the  main  the 
Institutes  of  Justinian.2  It  is  very  doubtful  whether  Gaius  was 
ever  a  practitioner  at  all;  it  was  as  a  teacher  and  theoretical 
jurist  that  he  excelled.  If  it  be  true  that  he  was  lacking  in 
constructive  talent,  that  he  did  not  possess  judicial  powers  of 
the  highest  order,  it  must  be  admitted  that  he  was  a  master  of 
style,  and  that  his  great  compendium  of  the  fundamental 
doctrines  of  the  law  is  a  model  of  simplicity,  precision,  and 
accuracy  of  language.  If  he  suffered  neglect  through  the 
omission  of  his  name  from  the  pages  of  his  contemporaries 
and  successors,  he  has  enjoyed  more  perhaps  than  his  due 
share  of  fame  by  the  happy  discover)'  of  his  Institutes  at 
Verona  in  1816  by  the  historian  Niebuhr,  just  at  the  moment 
when  the  founders  of  the  historical  school  of  jurisprudence 
were  beginning  to  assert  their  influence.  As  an  entire  work  the 
Institutes  of  Gaius  had  been  lost ;  only  an  epitome  or  abridg- 
ment had  been  preserved  in  the  Lex  Romano,  Visigothorum.3 
After  Niebuhr  had  communicated  the  results  of  his  investiga- 
tion to  Savigny,4  who  hazarded  the  conjecture  that  his  dis- 

1  It  ran  thus:    "We  accord  our  approval  to  all  the  writings  of  Papinian, 
Paul,  Gaius,  Ulpian,  and  Modestine,  conceding  to  Gaius  the  same  authority 
enjoyed  by  Paul,  Ulpian,  and  the  rest,  and  sanctioning  the  citation  of  all  his 
works."     Theod.  Cod.  i.  4.  3. 

2  A  recent  contribution  to  the  mass  of  literature  on  the  subject  of  Gaius  is 
the  treatise  of  Glasson,  Etude  sur  Gaius,  etc.,  2d  ed.,  Paris,  1885. 

*  The  last  edition  is  that  of  Booking  (Bonn,  1831),  in  the  Corp.  jur.  Rom. 
Antejustiniani.  It  was  first  edited  apart  from  the  Lex  Romano  in  1525. 

4  Savigny 's  account,  including  Niebuhr's  letter  to  him,  is  in  the  Z.  f.  gesch. 
R.W.  iii.  (1817),  129  sq. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  109 

covery  contained  the  text  of  the  Institutes,  the  Royal  Academy 
of  Berlin,  in  1817,  commissioned  experts  to  go  to  Verona  and 
decipher  the  manuscript,  there  known  as  Codex  XIII.,  con- 
taining, apparently,  the  writings  of  St.  Jerome,  but  in  reality 
a  palimpsest.  The  work  was  done  with  genuine  German 
thoroughness  and  the  result  is  that  we  have  the  Institutes  of 
Gaius  almost  complete.  Thus  students  of  to-day  were  put  in 
possession  of  the  masterpiece  of  the  last  Roman  jurist  in  whom 
the  prolonged  opposition  between  the  Proculian  and  Sabinian 
schools  appears.  After  the  time  of  Pomponius  and  Africanus 
the  star  of  the  Proculian  school  began  to  set.  Gaius,  who  was 
a  Sabinian,  still  mentions  contemporary  teachers  "of  the  other 
school,"  but  their  names  have  not  come  down  to  us.1  In  the 
end  the  Sabinians  triumphed.  Through  the  labors  of  their  Final  trf- 
great  apostle,  Julian,  the  work  of  fusion  was  fully  accom-  Sabinians 
plished  —  there  was  to  be  henceforth  but  one  system  of  law, 
the  lines  of  whose  future  development  were  laid  down  by  him. 

As  the  second  century  drew  to  a  close  the  consciousness  of  Greek- 
the  great  internal  unity  to  which  the  Empire  had  already  orient!18 
attained  was  deepened  by  the  intellectual  contributions  made 
by  the  Greek-speaking  Orient  to  a  jurisprudence  destined  to 
be  coextensive  with  the  franchise  finally  extended  by  Rome 
in  the  time  of  Caracalla,  to  all  her  subjects.    Q.  Cervidius 


Scaevola,  who  was  a  Greek  by  birth,  seems  to  have  com-  Q. 
menced  his  career  in  the  reign  of  Antoninus  Pius,  to  have  been 
in  his  prime  when  he  sat  in  the  council  of  state  of  Marcus 
Aurelius,2  and  to  have  been  still  engaged  in  his  profession  in 
the  early  years  of  Septimius  Severus,  who  was  his  pupil  in  the 
law.  To  judge  from  his  Digesta  and  Questiones,  many  of  his 
clients  seem  to  have  been  in  the  Greek-speaking  provinces. 
His  Digesta,  in  forty  books,  in  which  he  sets  forth  Roman  law 
after  the  casuistic  method  in  the  shape  of  responsa,  adopted, 

1  Sohm,  Institutes,  p.  69. 

2  It  is  probable  from  what  Capitolinus  says  (Marc.  11)  that  he  was  one  of 
the  emperor's  praetorian  prefects. 


110  THE  SCIENCE  OF  JURISPRUDENCE 

like  others,  the  arrangement  of  the  edict.  It  is  not  devoted 
exclusively  to  case  law,  but  contains  a  considerable  amount  of 
doctrinal  exposition  of  such  a  high  order  as  to  have  won  for 
its  author  the  title  of  prudentissimus  jurisconsultorum.1  To 
Scaevola  belongs  the  honor  of  having  been  the  instructor  of 

Papinian.  the  great  Papinian,  who,  like  his  master,  was  an  Oriental. 
He  was  advocatus  fisci  under  Marcus  Aurelius  and  became 
master  of  requests  and  afterwards  praetorian  prefect  under 
Septimius  Severus,  whom  he  accompanied  to  Britain.  An 
enactment  in  the  Code,  dated  from  York  in  the  year  210,  is 
not  unreasonably  attributed  to  his  pen.2  In  the  works  of 
Papinian,  the  most  important  of  which  consist  of  eighteen 
lihri  responsorum  and  thirty-seven  questionum  libri  (the  latter 
following  the  arrangement  of  the  edict),  we  have  the  joint 
product  of  Greek  and  Roman  culture,  acting  and  reacting  on 
each  other.  In  these  most  perfect  models  of  Roman  juris- 
prudence the  author  adopts  the  casuistic  method  of  expound- 
ing the  law  by  means  of  answers  to  concrete  legal  cases  formu- 
lated with  the  elegance  of  a  Greek  and  the  terseness  of  a 
Roman.  He  has  no  equal  in  the  precision  with  which  he 
states  a  case,  eliminating  all  irrelevancies  of  fact,  and  bringing 
out  the  essential  matter  in  such  bold  relief  in  accordance  with 
the  legal  principle  propounded,  as  to  carry  conviction  by 

Roman  sheer  statement  without  argument.  The  Roman  treatises 
^nus  constructed  correspond  in  a  general  way  with  the  English 
reP°r^s  °^  case  ^aw  formulated  by  the  judges,  who  are  sup- 
posed never  to  go  beyond  the  concrete  facts  before  them. 
In  theory  no  dictum  thrown  out  incidentally  is  of  binding  force ; 
it  is  only  the  ratio  decidendi  that  can  be  quoted  as  authority. 
The  merit  of  the  English  case  system  rests  in  the  main  upon 

1  Cod.  Theod.  iv.  4.  3,  3. 

3  Cod.  \ii.  32.  1.  "Not  a  few  of  the  great  Roman  jurists  (including  Julian, 
Papinian,  and  Ulpian)  sat  in  the  imperial  consistory,  and  were  practically 
not  only  judges  of  the  highest  court  of  appeals  but  also  legislators."  Bryce, 
Studies  in  History  and  Jurisprudence,  p.  634. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  111 

the  concentration  of  the  judicial  mind  upon  the  actual  ques- 
tions involved  in  a  real  transaction  between  man  and  man, 
which  are  argued  with  all  the  keenness  of  personal  interest, 
and  decided  under  that  sense  of  responsibility  which  a  judge 
must  feel  when  he  knows  that  his  judgment  is  not  only  to 
determine  the  pecuniary  or  social  interests  of  actual  litigants, 
but  also  that  the  rules  of  law  announced  by  him  are  to  stand 
as  a  lasting  honor  or  reproach  to  his  memory.  In  contrast 
with  that  system  stands  the  work  of  the  Roman  praetor  who 
spoke  generally;  in  the  edict  which  he  issued  at  the  beginning 
of  his  term  he  laid  down  a  rule,  intended  from  the  first  to  apply 
to  a  large  class  of  instances  or  cases.  After  the  praetor  had 
thus  drawn  the  outlines  of  the  picture,  the  scientific  jurist 
followed  after  him  in  order  to  fill  in  the  details  by  so  working 
over  each  of  his  summary  statements  as  to  bring  out  more 
fully  all  that  it  contained,  to  trace  his  principles  to  their  conse- 
quences, and  to  illustrate  their  application.  After  producing  compilers 
the  masterpieces  of  Papinian,  Roman  jurisprudence  entered  Snowed 
upon  a  period  of  decline — the  creative  work  of  the  masters  was  paPiman- 
now  to  be  followed  by  the  labors  of  the  compilers  who  were, 
in  a  critical  spirit,  to  refine  the  accumulated  treasures  of  the 
past  and  to  transmit  them  to  posterity.  Foremost  among  the  uipian. 
latter  class  stand  Ulpianus  and  Paulus,  who  made  their  first 
appearance  in  public  life  as  assessors  in  the  auditorium  of 
Papinian1  and  members  of  the  council  of  Septimius  Severus. 
After  being  deprived  of  his  dignities  by  Heliogabalus,  Uipian 
was  reinstated  in  favor  on  the  accession  of  Alexander  Severus, 
whose  guardian  he  became,  and  by  whom  he  was  appointed 
praetorian  prefect,2  acting  virtually  as  regent.  His  works, 
most  of  which  date  from  the  reign  of  Caracalla  (212-217  A.D.),S 

1  Papinian  was  slain  in  212,  Uipian  in  228.  Kriiger,  Geschichte  der  Quellen  des 
romischen  Rechts,  pp.  198,  215 ;  Karlowa,  Romische  Rechtsgeschichte,  i.  736,  741. 

8  In  a  rescript  of  Alexander,  Uipian  is  described  as  praefectum  praetorio 
et  parentum  meum.  Cod.  iv.  65.  1,  4. 

*  In  the  reign  of  Caracalla,  Uipian  and  Paul  were  the  heads  of  two  minis- 
terial offices  —  the  records  and  the  requests. 


112  THE  SCIENCE  OF  JURISPRUDENCE 

consist  of  his  voluminous  commentary  on  the  praetorian  edict, 
in  eighty-three  books,  of  his  fifty-one  libri  ad  Sabinum,  and 

Paul.  of  a  long  series  of  monographs.  Paul,  who  was  probably  a 

pupil  of  Scaevola,  was  also  a  very  prolific  writer  until,  as  the 
successor  of  Ulpian,  he  became  the  praetorian  prefect  of 
Alexander.  His  principal  works  were  a  commentary  in 
eighty  books  on  the  edict,  and  a  commentary  in  sixteen  books 
on  Sabinus.  The  range  of  both  jurists  was  much  the  same, 
and  it  was  in  the  main  through  the  medium  of  their  writings 
that  the  creative  work  of  the  great  jurists  influenced  subse- 
quent ages.  The  foundations  of  Justinian's  Digest  were  laid 
in  the  critical  and  comprehensive  summaries  made  by  them 
of  the  immense  intellectual  achievements  of  their  predecessors. 
As  Ulpian's  writings  constitute  one  third,  Paul's  writings  about 
one  sixth,1  it  follows  that  about  one  half  of  that  part  of  the 
Corpus  juris  consisting  of  the  Digest  owes  its  origin  to  their 

Modestinus.  works.2  After  them  only  one  jurist,  Modestinus,3  Ulpian's 
pupil,  and  like  him  a  native  of  the  Greek  portion  of  the  Em- 
pire, attained  to  eminence,  emphasized  by  the  fact  that  he  is 
put  by  the  Valentinian  Law  of  Citations  in  the  same  category 
with  Gaius,  Papinian,  Ulpian,  and  Paul.  Not  long  after  the 
time  of  Modestinus,  who  was  praetorian  prefect  about  the 
middle  of  the  third  century  of  our  era,  the  period  of  decline 
set  in;4  the  jus  respondendi  ceased  to  be  conferred  after  the 


conferred,     close  of  the  third  century;   the  emperor  alone  gave  response, 


1  Twenty-four  hundred  and  sixty-two  passages  from  Ulpian,  2080  from  Paul. 
"The  Sententiae  "  of  Paul,  preserved  to  a  considerable  extent,  together  with 
the  Fragments  of  Ulpian  may  be  found  in  Tissot's  Tresor,  Metz,  1811.  The 
civians  estimate  that  there  were  in  all  four  hundred  and  thirty-two  titles  and 
nine  thousand  one  hundred  and  forty-two  extracts,  and  that  the  total  of  para- 
graphs and  undivided  laws  is  about  nineteen  thousand.  Roby,  Introduction  to 
the  Study  of  Justinian's  Digest,  p.  29. 

*  Paul  did  not  excel  as  Ulpian  did  in  clearness  of  diction  and  exactness  of 
statement,  hence  the  complaint  of  the  glossators,  "maledictus  Paulus  ita  ob- 
scure loquitur  ut  vix  intelligi  potest." 

*  There  are  344  extracts  from  his  works  in  the  Digest. 

*  Kriiger,  op.  cit.,  p.  226 ;   Karlowa,  op.  cit.,  i.  752. 


EXTERNAL  HISTORY  OF  ROMAN1  LAW  113 

in  the  form  of  rescripta  principis.1  Thus  it  was  that  the 
departing  spirit  of  the  creative  epoch  of  Roman  law  infused 
itself  into  the  voluminous  rescripts  of  Diocletian  and  his 
successors.2  It  is  generally  admitted  that  with  the  reign  of 
Alexander  Severus  the  power  of  growth  in  Roman  equity  End  of  the 


seemed  to  be  exhausted.    Then  follows  a  period  during  which,    r°^    of 


as  Gibbon  tells  us,  "the  oracles  of  jurisprudence  were  almost  e(iuity- 
mute."  3  The  Science  of  Jurisprudence  was  sharing  the  fate 
of  art.  From  that  time  the  history  of  Roman  law  is  the 
history  of  the  imperial  constitutions  and  of  the  attempts 
finally  made  to  subject  the  unwieldy  body  to  codification,  summary. 
When  at  the  outset  it  became  necessary  to  adapt  the  rigid 
system  of  archaic  law  embodied  in  the  Twelve  Tables  to  the 
growing  wants  of  an  expanding  society,  the  praetorian 
edict  became  the  channel  through  which  the  jus  gentium 
flowed  into  and  enriched  the  primitive  system.  Thus  in  a 
rough  and  general  way  the  edict  was  able  to  work  out  the 
principles  of  a  free  and  equitable  law  for  the  mutual  dealings 
of  man  with  man.  In  solving  the  finer  problem  —  which 
involved  the  discovery  of  the  true  nature  of  the  dealings 
themselves  by  tracing  the  unexpressed  and  unconscious  inten- 
tion underlying  them  to  a  moral  source  —  the  Roman  jurists 
displayed  their  highest  genius  in  ascertaining  the  precise 
requirements  of  bona  fides  in  human  transactions  and  in 
applying  them  to  individual  cases.  Through  their  labors  it 
was  that  that  shifting  and  intangible  law  known  as  the  jus 
gentium  was  so  refined  and  reduced  to  exact  definitions  as 
to  secure  to  Roman  jurisprudence  its  imperishable  power. 
The  classic  beauty  and  perfection  of  the  scientific  law  litera- 
ture thus  evolved  needed  now  only  the  finishing  touch  to  be 
given  by  the  hand  of  imperial  legislation. 

1  And  yet  instances  of  grants  of  the  jus  respondendi  seem  to  have  occurred 
even  under  Diocletian.  Kriiger,  Gesch.  der  Quetten,  p.  260,  note  6. 

*  Cf.  F.  Hofmann,  Kritische  Studien  zum  romischen  Rechte  (1885),  pp.  3-35, 
"  Der  Verfall  der  Rom.  Rechtswissenschaft.  "  *  Decline  and  Fall,  iv.  543. 


114 


THE  SCIENCE  OF  JURISPRUDENCE 


Imperial 
legislation. 


Praetorian 
edict  as 
tentative 
legislation. 


Private  law 
improved 
by  praetor 
and  jurists. 


10.  The  statement  has  been  made  already  that  formal 
legislation  is  the  last  of  the  three  agencies  employed  by  a 
progressing  state  to  expand  and  adapt  its  archaic  code  to  the 
ever  changing  conditions  of  the  aftergrowth.  It  may  be 
said  that,  as  a  general  rule,  remedial  equity  is  everywhere 
older  than  remedial  legislation.  From  the  preceding  sketch  of 
the  working  of  remedial  equity  at  Rome  it  appears  that  the 
praetorian  edict  accomplished  what  may  be  called  tentative 
legislation  when  due  consideration  is  given  to  the  method 
through  which  it  brought  about  changes  in  preexisting  law.1 
When  an  ancient  rule  was  inadequate  to  new  conditions 
or  when  it  began  to  be  so  mischievous  as  to  deserve 
to  become  obsolete,  the  praetor  dealt  with  it  in  a  broad 
and  comprehensive  way  either  by  suspending  it  altogether 
or  by  laying  down  certain  marked  exceptions  to  it.  When 
a  new  kind  of  action  was  needed  in  a  particular  set  of 
cases,  he  simply  introduced  a  new  sentence  into  his  edict 
granting  it.  If,  when  tested  by  experience,  the  innovation 
was  in  the  judgment  of  the  profession  inefficient  or  ill-advised, 
the  next  praetor  promptly  omitted  it,2  or  so  modified  it  as  to 
meet  the  objections  urged  by  the  jurists  against  it.  Thus 
while  one  great  branch  of  modern  legislation  lay  almost  un- 
touched during  the  Roman  Republic,  that  of  the  regulation 
of  powers  and  functions  of  administrative  departments,  the 
improvement  of  ordinary  private  law  was  for  the  most  part 
left  to  the  praetor  and  the  jurists.  And  yet  the  fact  must  riot 
be  forgotten  that  while  not  very  much  direct  legislation  was 
needed  at  the  outset,  there  were  always  competent  organs  of 
such  legislation  in  the  Roman  state  from  the  very  beginning. 
As  stated  heretofore,  the  legislative  power  of  the  Roman  people 

1  See  above,  p.  92. 

2  "A  particular  case  decided  in  a  particular  way  under  a  provision  of  the 
edict  which  was  omitted  next  year  would,  of  course,  not  be  disturbed,  for  the 
Romans  held  firmly  to  the  principle  stare  jttdicatis. "     Bryce,  Studies  in  History 
and  Jurisprudence,  p.  702,  note  1. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  115 

was  exercised,  during  the  Republic,  through  three  assemblies,  Organs  of 
those  of  the  curies,  the  centuries,  and  the  tribes,  all  primary  egls 
assemblies  consisting  of  meetings  (comitia)  of  the  whole  body  of 
citizens,1  just  like  a  Homeric  ayopd,  an  Athenian  e/c/cX^erta, 
a  Frankish  mallum,  an  old  English  gemot,  an  Icelandic  Thing, 
a  New  England  town  meeting.2  These  fluctuating  Roman 
assemblies,  consisting  often  of  thousands,  were  bodies  com- 
posed of  minor  bodies,  each  individual  voting  in  the  group 
to  which  he  belonged,  curia,  centuria,  or  tribiis  as  the  case  might 
be.  It  was  by  the  majority  of  curies,  centuries,  or  tribes  that 
the  decision  of  the  assembly  as  a  whole  was  given,  the  collect- 
ive voice  of  each  of  these  groups  being  reckoned  as  one  vote, 
and  a  small  group  having  as  much  weight  as  a  large  one.8 
Such  assemblies  could  be  convoked  and  presided  over  only  by  Methods  of 
a  magistrate;  no  discussion  took  place  in  them;  they  met  lawmakiDs- 
only  to  vote  on  propositions  of  the  presiding  magistrate,  who 
alone  could  speak,  and  who  spoke  only  to  put  the  question. 
They  voted  once  only,  and  that  vote  was  final  and  supreme, 
requiring  no  assent  of  or  confirmation  by  any  other  body,  but 
operating  directly  to  create  a  rule  binding  all  members  of  the 
state.  In  order  that  it  might  be  understood  by  the  ordinary- 
citizen,  the  bill  proposed  was  necessarily  clear  and  terse. 
As  it  could  not  be  amended  by  the  assembly,  the  proposing 
magistrate  responsible  for  it  was  apt  to  prepare  it  with  scrupu- 
lous care.  It  became  operative  immediately  on  being  ap- 
proved by  the  single  vote  of  the  assembly,  with  no  opportunity 
of  correcting  it  at  any  later  stage  or  in  any  other  legislative 
body.  The  word  lex,4  or  statute,  when  applied  to  an  enact- 

1  See  above,  p.  56. 

3  Cf.  Freeman,  Comparative  Politics,  pp.  46,  130,  136,  142,  148. 

*  "Each  qualified  person  had  a  vote  in  his  curia,  as  in  some  of  our  political 
conventions  to-day,  each  member  of  a  delegation  might  have  a  vote  in  that 
delegation  to  determine  its  desires ;    but  the  vote  of  the  whole  assembly  wag 
taken  by  curiae,  just  as  in  our  conventions  the  vote  of  the  entire  body  may  be 
taken  by  delegations. "     Howe,  Studies  in  the  Civil  Law,  p.  36. 

*  "  Lex  is  probably  connected  etymologically  with  the  German  legen  (Gothic 
lagjan),  as  faffftAt  with  rtOiffu."     Greenidge,  Roman  Public  Life,  p.  43. 


116 


THE  SCIENCE  OF  JURISPRUDENCE 


Power  of 
direct 
legislation 
passed  to 
senate. 


ment  by  the  comitia  described,  in  early  Latin,  not  a  special 
kind  of  legal  rule,  but  merely  the  expression  of  the  people's 
will  hi  set  terms.  When  the  Roman  popular  assemblies  died 
out  and  became  obsolete,  without  being  ever  formally  abol- 
ished, the  power  of  direct  legislation  passed  to  the  senate,  a 
council  of  elders  as  old  as  Rome  itself.  After  the  comitia 
ceased  to  be  convoked,  except  occasionally  as  a  matter  of 
form  to  give  effect  to  the  monarch's  will,1  the  legislative  func- 
tions of  the  senate  naturally  won  full  recognition  as  they 
furnished  exactly  the  method  of  legislation  which  the  emperor 
desired.  And  so  at  the  very  moment  when  the  senate  was 
recognized  as  an  organ  of  legislation,  it  became  the  mere  tool 
of  the  emperor  for  that  purpose.  Like  the  comitia,  the  senate 
could  only  deal  with  what  the  magistrate  brought  before  it, 
private  members  having  no  initiative.  But  unlike  the  comitia, 
it  could  debate  a  proposition  and  make  amendments  thereto ; 
that  is  to  say,  it  could  reject  the  proposition  as  drafted  and 
pass  one  containing  different  provisions.  The  senate  soon 
came  to  be  so  recognized  as  the  mere  instrument  through 
which  the  emperor  enacted  and  promulgated  measures  on 
which  he  had  already  decided,  that  the  later  lawyers  some- 
times cite  not  the  senatus  consultum  itself,  but  the  speech 
(oratio)2  in  which  the  emperor  proposed  it  to  the  senate,  to 
whose  vote,  in  these  cases,  the  legal  validity  of  the  law  seems 
to  have  been  attributed.  After  Hadrian's  time  it  would 
appear  that  legislative  decrees  were  always  passed  at  the 

1  The  comitia  gradually  became  a  mere  name  under  Augustus  and  Tiberius. 
Caius,  after  professing  to  restore  the  assembly  to  its  old  powers,  withdrew  his 
own  gift.     For  a  notable  description  of  the  change,  see  Dion  Cassius,  lix.  20, 
who  says :  itrfduKt  fjutv  yip  ria  dpxatptfflas  afoot*  '  Hre  of  fictlvuv  re  dpyortpuv 
inrb  TQU  iroXX<f>  xp&vy  pyStv  t\evO{p<at  KtxpiHJ&TtKf'vcu.  ft  rb  opav  TL  ruiv  irpo<r-riKbv- 

TUV   <T<pifflV   OVTUV,     Kdl     TUV     <TTOl'8opXl(^'rra"'      fA\lffTO.    fj£v     ^  1T\fLoVUV    ff     SffOVt 

alpclffOai  fdei  fTra.yye\\6yruv^  el  Si  -rare  ical  inrep  rbv  dpiBfiAv  ytvotvro,  5to^o\o- 
yovfdtHiiv  irpbt  dXXi^Xovt,  rb  fifv  a"x.ijfJM  rrjt  Srjfu>Kpariat  Iff&tero,  epyov  5"  o&5ev 
afrrijt  tylyvero,  xai  8tA  rovro  \nr  afrrov  at0is  TOV  Tatov  Ka.rt\'u6i}ffa.v  •  *cd«c  TOVTOV 
rii  fifv  &XXa  KaOdirep  ical  iirl  TOV  Tifteplov  KaBlffraro. 

2  Karlowa,  op.  cit.,  p.  643;  Kriiger,  op.  cit.,  p.  83. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  117 

instance  of  the  monarch.  The  final  form  of  direct  Roman 
legislation  is  that  of  imperial  ordinance,  the  outcome  of  the  imperial 
imperial  function  ascribed  in  later  times  to  a  formal  transfer 
made  to  the  emperor  by  the  people  of  their  own  authority.1 
It  was  legislation  of  that  type  which  gave  to  the  Roman  law 
the  shape  in  which  it  descended  to  the  modern  world,  both  in 
the  East  and  West,  the  number  of  leges  and  senatus  consulta 
being  slight  in  comparison  with  the  surviving  body  of  statute 
law  enacted  by  the  emperor  as  "opinions"  on  particular  cases 
(rescripta),  as  decisions  of  particular  cases  (decreta,  interlocw- 
tiones),  as  instructions  to  officials  (mandata),  and  as  public 
ordinances  or  proclamations  (edicta).2  In  order  to  aid  the 
emperor  in  the  discharge  of  the  vast  legislative  and  judicial 
functions  that  accumulated  around  his  office,  a  council  was 
constructed,  consisting  at  first  chiefly  of  senators,  afterwards 
largely  of  jurists,  whose  members  acted  as  assessors  to  the 
emperor  when  he  heard  civil  or  criminal  cases,  and  who  also 
advised  him  on  projects  of  legal  change.  This  council,  which 
under  Trajan  and  Hadrian  became  a  regtlarly  organized 
chamber  of  formally  nominated  and  salaried  officials  (present- 
ing in  many  particulars  an  interesting  parallel  to  the  English 
privy  council),  took  in  the  time  of  Diocletian  the  name  of 
consistorium,  the  model  on  which  the  papal  consistory  was 
ultimately  built  up  by  the  bishop  of  the  imperial  city.  It  can- 
not be  doubted  that  the  duty  of  prompting,  directing,  and 
shaping  legislation  must  have  been  one  of  the  most  important 
functions  of  the  emperor's  legal  councilors,  who  seem  to  have 
constituted  a  sort  of  ministry  of  justice,  directed  by  the  prae-  Praetorian 
torian  prefect,  and  in  later  times  by  the  quaestor,  with  a  body  pre 

1  Cf.  Just.  Inst.  1.2.6;  cf.  Dig.  1,  4,  1. 

*  In  these  four  ways  the  emperor  influenced  the  development  of  law. 
Cf.  Sohm,  Institutes,  pp.  76-80;  A.  Nissen,  Beitr&ge  gum  rdm.  Staatsrecht 
(1885),  pp.  209  ff. ;  Mominsen,  Staatsrecht,  vol.  ii.,  pp.  723  ff.  From  these 
authorities  may  be  drawn  a  fairly  clear  conception  of  the  emperor  as  a  source 
of  law. 


118 


THE  SCIENCE  OF  JURISPRUDENCE 


Two  stages 
of  develop- 
ment. 


Senatorial 
legislation 
superseded 
by  imperial. 


of  draftsmen  and  clerks  to  aid  him.1  Judging  not  only  from 
what  the  Empire  must  have  needed,  but  from  the  laws  or 
fragments  of  laws  which  remain  to  us  in  the  codes  of  Theodo- 
sius  II.  and  Justinian,  the  number  of  ordinances  enacted  was 
enormous.  Of  the  rescripts  of  Diocletian  alone,  we  possess  over 
a  thousand.  In  the  history  of  Roman  statute  law  is  reflected 
the  two  stages  of  development  through  which  the  imperial  power 
passed.  During  the  first,  while  the  Roman  state  remained  a 
republican  commonwealth  in  theory,  the  power  of  the  emperor 
was  simply  the  power  of  the  "  first  citizen  " ;  during  the  second, 
i.e.  from  the  time  of  Diocletian  and  Constantine,  it  was  the 
power  of  a  monarch.  The  princeps  of  the  first  epoch  had,  in 
theory,  no  legislative  powers,  but  the  imperial  monarch  of 
the  fourth  and  subsequent  centuries  had  legislative  powers. 
From  the  reign  of  Diocletian  the  imperial  power,  which  had 
then  become  definitely  monarchical,  commenced  to  exercise 
an  exclusive  control  over  the  further  development  of  law,  the 
emperor  reserving  to  himself  not  merely  the  right  formally  to 
create  new  law  by  direct  legislation,  but  also  the  right  to 
interpret  the  existing  law,  out  of  which  he  was  thus  able  in 
cases  of  doubt  to  develop  new  principles.  After  imperial 
legislation  had  thus  superseded  senatorial  legislation,  after 
an  imperial  statute  became  an  oratio  directly  promulgated 
to  the  nation  as  a  whole,  it  became  necessary,  of  course,  to 
distinguish  the  emperor's  merely  interpretative  or  judicial 
from  his  legislative  functions.  By  the  reversal  of  the  earlier 
rule  every  rescript  and  decree,  as  such,  was  treated  as  a  con- 
stitutio  personalis,  and  valued  only  for  the  particular  case, 
unless  the  general  validity  of  the  principle  applied  was  ex- 
pressly ordained.  It  was  only  when  the  emperor  chose  to  act 
as  lawgiver  that  a  law  binding  on  the  whole  Empire  (constitutio 
generalis)  came  into  existence.  In  later  times  the  general 
name  of  constitutions  (constitutio  est  quod  imperator  constituit) 

1  Bryce,  Studies  in  History  and  Jurisprudence,  pp.  725  sq. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  119 

was  given  to  all  enunciations  of  the  sovereign  power  of  those 
general  rules  of  law  which  it  desired  to  have  observed  by  its 
subjects.  The  constitutio  generalis  represents  the  true  type  of 
the  imperial  law.  Autocratic  power  thus  exercised  through  True  type  of 
the  making  of  general  rules  is  the  most  swift  and  efficient  of  law*" 
all  instruments  for  effecting  reforms,  and,  when  used  with  skill 
and  moderation,  can  confer  inestimable  benefits.  By  that 
means  the  ancient  traditional  law  (jus  vetus)  was,  during  an 
interval  of  over  two  centuries  (from  Diocletian  and  Constan- 
tine  to  Justinian),  subjected  to  a  continuous  process  of  refine- 
ment at  the  hands  of  successive  emperors  until  perfect  unity 
and  harmony  prevailed.  In  the  later  Empire,  dating  from 
the  fourth  century,  there  were  two  groups  of  sources  of  law:  TWO  groups 

of  sources  of 

(1)  the  old  traditional  law,  jus  vetus,  or  jus  simply,  which,  al-  law:  (i) 
though  based  on  the  Twelve  Tables,  the  plebiscite,  the  senatus  JU* 
consulta,  the  praetorian  edict,  and  the  ordinances  of  the  earlier 
emperors,  really  lived  on,  not  in  its  original  forms,  but  in  the 
juristic  literature  in  which  its  essence  was  embodied.  The 
jus  of  the  earlier  days  was  swallowed  up  in  the  jurist-made 
law  whose  development  was  completed  in  the  classical  period  ; 
that  is  to  say,  during  the  second  and  the  beginning  of  the  third 
century.  As  the  authority  which  the  responsa  and  the 
literature  connected  therewith  had  acquired  since  the  open- 
ing of  the  second  century  was  now  transferred  to  juristic 
literature  in  general,  it  was  to  that  source,  and  not  to  the 
original  sources,  that  the  tribunals  and  litigants  resorted. 
After  Diocletian  the  emperor  was  the  only  person  entitled  to 
give  authoritative  responsa,  which  he  did  by  means  of  his 
rescripts,  the  jus  respondendi  to  individual  jurists  not  being 
conferred  after  the  close  of  the  third  century.  Thus  the 
distinction  between  jurists  who  had,  and  jurists  who  had  not, 
the  jus  respondendi  gradually  disappeared.  In  time  the  writ- 
ings of  those  who  had  never  possessed  the  jus  respondendi 
were  cited  as  entitled  to  an  authority  equal  to  that  of  the 


120  THE  SCIENCE  OF  JURISPRUDENCE 

privileged  jurists,  provided  only  that  they  were  supported  by 
equal  literary  prestige.  From  the  time  of  Diocletian  down- 
ward the  making  of  the  law  was  exclusively  in  the  hands  of 
the  emperors;  the  responses  of  patented  jurists  were  a  thing 
of  the  past;  it  was  to  the  imperial  consistory  alone  that  the 
Roman  world  looked  for  the  interpretation  of  the  old  law  or 
the  promulgation  of  the  new.  That  consistory,  with  the  em- 
peror at  its  head,  came  to  be  regarded  as  a  supreme  court  of 
appeals,  and  under  the  new  arrangements  of  Constantine  the 
judgment  of  affirmance  or  reversal  was  embodied  in  a  rescript 
addressed  to  the  magistrate  from  whom  the  appeal  had  been 
taken.1  While  under  the  rule  made  by  Arcadius  and  Honorius 
in  398,  such  a  rescript  was  not  authoritative  except  for  the 
parties  to  whom  it  was  addressed,  in  a  renewal  of  it  by  Theo- 
dosius  and  Valentinian  in  425,  it  was  so  qualified  as  to  make  it 
an  edict  or  lex  generalis,  provided  it  contained  any  direct  indi- 
cation that  the  doctrine  it  laid  down  was  intended  to  be  of 
general  application.  In  adhering  to  that  qualification,  so  far 
as  rescripts  in  the  old  sense  of  the  word  were  concerned, 
Justinian  declared  that  his  judgments  (decreta)  should  be 
received  everywhere  as  laws  of  general  application,  and  that 
any  interpretation  given  by  him  of  a  lex  generalis  should  be  so 
regarded,  even  though  decided  on  the  petition  of  a  private 
party.  (2)  The  later  law  which  sprang  from  imperial  legisla- 
(2)  jus  tion,  called  sometimes  jus  novwn,  sometimes  leges,  embraced 
the  various  kinds  of  imperial  ordinances  heretofore  described, 
which  by  Justinian's  time  were  sharply  distinguished  from 
the  old  law  (jus  vetus)  made  up  of  republican  statutes,  sena- 
tus  consulta,  the  edicts  of  magistrates,  and  the  writings  of  the 
jurists.  The  later  Romans  contrasted  jus  and  lex  as  the 
English  contrast  common  law  and  statute.  Such  were  the 
two  kinds  of  law,  jus  and  leges,  mutually  supplementing  each 

1  See  Puchta,    Inst.  d.  Rom.  Rechts,   i.  §  131,  as  to  so-called  consuUationes 
post  sentcntiam;  Muirhead,  Roman  Law,  p.  354. 


novum. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  121 

other,  which  represented  the  entire  development  of  Roman 
law  that  had  taken  place  from  the  earliest  times  down  to 
that  period  in  the  later  Empire  when  the  work  of  codifica- 
tion began. 

11.  It  seems  to  be  clear  that  the  first  cause  of  the  tendency  to  Ante-Jus- 
consolidate  the  law  and  make  it  more  accessible  is  to  be  found  &^^0\°  ' 
in  the  profusion  with  which  Diocletian  and  his  successors  had  lectlons- 
used  their  legislative  power,  flooding  the  Empire  with  a  mass 
of  ordinances  which  few  persons  could  procure  or  master.    Ex- 
cepting a  private  collection  of  rescripts  compiled  in  the  second 
half  of  the  second  century,1  the  first  collection  of  imperial 
rescripts,  with  a  few  edicts,  made  probably  at  the  suggestion 
of  Diocletian,  is  that  contained  in  the  Codex  Gregorianus,  Codex  Gre- 
published  about  300  A.D.,  though  whether  in  the  East  or  West  9 
critics  are  unable  to  determine.     From  the  knowledge  of  its 
contents  derived  in  the  main  from  the  Breviary  of  Alaric,  and 
the  Collatio,  the  Vatican  Fragments,  and  the  Consultatio,  it 
is  believed  to  have  contained  fifteen  or  sixteen  books,  sub- 
divided into  titles,  arranged  after  the  order  of  the  edict.    A 
later  collection  of  rescripts,  supplementing  the  former  and 
published  in  the  course  of  the  fourth  century,  was  the  Codex  Codex  Her- 
Hermogenianus,  arranged,  so  far  as  appears,  only  in  titles. 
Although  the  work  of  private  parties,  both  codes  received 
statutory  recognition  from  Theodosius  and  Valentinian  in 
their  commission  for  a  preparation  of  edictal  law.2    The  jus 
(vetus)  was  traditionally  taken  to  include  the  collections  of 
early  imperial  ordinances,  more  especially  of  rescripts,  among 


1  They  existed  in  the  "  libri  xx.  constitutionum  "  of  Papirius  Justus,  and  were 
considered  as  belonging  to  the  jus,  and  as  such  were  extracted  by  Justinian 
in  his  Digest  (e.g.  1.  60  D.  de  pact-is,  2,  14). 

*  Cf.  Karlowa,  Rom.  RG.  i.  940  sq.,  959  sq.  •  Huschke,  "  Ueber  den  Gregori- 
anus u.  Hermogenianus  Codex,"  in  the  Z.  f.  RG.,  vol.  vi.  (1867),  pp.  283  sq.; 
Kriiger,  Gesch.  der  QueUen,  §  34 ;  Sohm,  Institutes,  pp.  86,  90,  94.  See  also 
the  two  codes,  edited  by  Kriiger,  and  contained  in  the  3d  vol.  of  Kriiger, 
M.  and  S.'s  Cottectio  lib.  Jur.;  Mommsen's  article  in  Z.  d.  Sav.  Stift.,  1889, 
vol.  x.,  pp.  345  aq. 


122  THE  SCIENCE  OF  JURISPRUDENCE 

which  the  Gregorian  and  Hermogenian  codes  were  preeminent. 
The  next  important  step  in  the  work  of  codification  is  rep- 
Law  of  resented  by  the  Law  of  Citations  of  Valentinian  III.,  issued 
from  Ravenna  in  the  year  426,  and  enacting  that  the  writings 
of  Papinian,  Paulus,  Ulpian,  Gaius,  and  Modestinus,  as  well  as 
all  those  cited  by  these  writers,  should  possess  quasi-statutory 
force  so  that  their  opinions  should  be  binding  on  the  judge.1 
When  opinions  differed  on  the  same  question,  that  should  pre- 
vail which  was  supported  by  most  jurists;  if  the  numbers 
were  equal,  Papinian's  opinions  should  prevail,  or  if  Papinian 
had  expressed  no  opinion  on  the  question,  the  judge  was 
to  exercise  his  discretion.  This  Law  of  Citations  was  evi- 
dently based  on  the  assumption  that  the  writings  of  the  five 
great  jurists  named  were  widely  circulated  and  generally 
A  kind  of  known.  A  kind  of  codification  could,  therefore,  be  accom- 
lon'  plished  by  giving  a  quasi-statutory  force  to  their  writings  in 
preference  to  other  and  older  jurists,  such  as  Scaevola  and 
Sabinus,  whose  writings  were  only  to  be  used,  if  they  —  in 
the  words  of  the  enactment  —  codicum  collatione  ftrmantur, 
words  whose  meaning  is  doubtful.2  A  great  English 
jurist  has  lately  said:  "I  have  heard  an  eminent  judge 
(the  late  Lord  Justice  W.  M.  James)  of  our  own  time 
observe  that  the  easiest  way  to  codify  the  law  of  England 
would  be  to  enact  that  some  eight  or  ten  established  text- 
books, such,  for  instance,  as  Jarman  on  Wills,  Chitty  on  Con- 
tracts, Williams  on  Executors,  Lindley  on  Partnership, 
Smith's  Leading  Cases,  Hawkins  on  the  Interpretation  of 
Wills,  Dicey  on  Domicil,  should  have  the  force  of  statutes. 
To  do  this  would  add  little  to  the  volume  of  the  existing  Eng- 
lish law,  for  the  text-books  mentioned  are  in  reality  digested 
summaries  of  decisions  that  lie  scattered  through  the  reports." 3 

1  Theod.  Cod.  1.  4.  3. 

»  Cf.  Sohm,  Institutes,  pp.  84,  85  ff.,  note  1. 

1  Bryce,  Studies  in  History  and  Jurisprudence,  p.  685. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  123 

Despite  the  various  and  conflicting  explanations  *  of  the 
Valentinian  Law  of  Citations  it  is  hard  to  doubt  that  the 
true  one  is  suggested  by  the  passage  quoted  above.  By 
recognizing  the  text-books  of  five  of  the  greatest  and  most 
widely  known  of  the  Roman  jurists,  the  constitution  of  Valen- 
tinian simply  attempted  to  accomplish  a  kind  of  codification 
on  the  lines  suggested  by  Lord  James  as  a  hopeful  expedient 
for  the  codification  of  English  law.  Three  years  after  the 
publication  of  the  Law  of  Citations,  enacted  by  Valentinian 
while  under  the  tutorship  of  Theodosius  II.,  that  emperor 
nominated  a  commission  for  the  preparation  of  a  body  of  law 
which,  if  the  scheme  had  been  executed,  would  have  rendered 
the  work  of  Justinian  unnecessary.  Theodosius  made  it  plain 
that  it  was  not  the  splendor  but  the  decadence  of  legal  science  Decadence 
that  ushered  in  the  era  of  codification  when,  in  explaining 


some  ten  years  later  the  motives  which  actuated  his  under-  Preludeto 

codification. 

taking,  he  says  that  he  saw  with  much  concern  the  poverty- 
stricken  condition  of  jurisprudence,  and  how  very  few  men 
there  were  who,  notwithstanding  the  prizes  that  awaited  them, 
were  able  to  make  themselves  familiar  with  the  whole  range  of 
law  scattered  through  a  multitude  of  books  and  large  masses 
of  statutes  which  it  was  next  to  impossible  for  any  ordinary 
mortal  to  master.  After  his  first  scheme,  contemplating  the 
compilation  of  a  single  code  from  materials  to  be  derived  from 
the  edictal  laws  since  the  time  of  Constantine,  from  the  writ- 
ings of  the  jurists,  and  from  the  Gregorian  and  Hermogenian 
collections  of  rescripts,  failed  of  execution,  he  appointed  in 
435  a  new  commission  to  collect  the  edicts,  with  nothing, 
however,  in  their  instructions  as  to  any  other  matter.  The 

1  Cf.  Karlowa,  Rdm.  RG.,  i.  933  sq.  ;  Puchta,  in  the  Rhein.  Museum  f. 
Jurisprud.,  vol.  v.  (1832),  pp.  141  sq.,  and  in  his  Verm.  Schrift.  (Leipzig,  1851), 
pp.  284  sq.  ;  Roby,  Introduction,  pp.  Ixxxiv  sq.  ;  Sohm,  Institutes,  pp.  84  aq.  ; 
Pel-nice,  Z.  der  Sav.  St.  vii.  155  ;  Danz,  Lehrbuch  der  G.  des  Rom.  R.  (2d  ed.), 
§  78  ;  Dernburg,  Die  Institutionem  des  Gajus,  p.  110  ;  Ferrini,  Storia  delle  fontidi 
diritto  Romano  (Melano,  1885),  pp.  112  ff.  From  these  authorities  may  be  drawn 
the  different  explanations  of  the  Law  of  Citations. 


124 


THE  SCIENCE  OF  JURISPRUDENCE 


Code  of 

Theodosius, 
438. 


"  Post- 

Theodosian 

Novels." 


"Syrio- 
Roman 
Book  of 
Law." 


work  was  completed  in  three  years,  and  the  code  resulting  from 
it  was  published  at  Constantinople  early  in  the  year  438, 
to  take  effect  from  the  first  of  January  following.  A  copy 
was  communicated  to  Valentinian,  who  ordained  that  it  should 
take  effect  in  the  West  from  the  twelfth  of  January,  439. 
In  the  Theodosian  Code  were  arranged,  in  sixteen  books,  sub- 
divided into  titles,  the  constitutiones  generales  issued  since 
Constantino,  covering  the  entire  field  of  law,  public  and  pri- 
vate, civil  and  criminal,  military  and  ecclesiastical,  fiscal  and 
municipal,  the  private  law  being  embraced  in  the  first  five 
books.  All  such  general  constitutions  of  the  same  period  as 
had  not  been  adopted  were  at  the  same  time  abrogated. 
The  separate  imperial  laws  issued  between  the  Code  of  Theo- 
dosius and  that  of  Justinian,  known  as  "Novels"  (novellae, 
constitutiones),  were  collected  under  that  name  and  are  called 
"  Post-Theodosian  Novels."  *  To  the  same  period  belongs  the 
so-called  "Syrio-Roman  Book  of  Law,"  originally  written  in 
Greek,  and  which  has  survived  to  this  day  in  a  Syrian  as  well 
as  an  Arabic  and  Armenian  translation.  It  dates  from  about 
the  year  476,  and  has  been  recently  edited  with  notes  by  Bruns 
and  Sachau,  under  the  title  of  Syrisch-Romisches  Rechtsbuch 
aus  demfunften  Jahrhundert  (1880). 2  This  work,  which  sheds 
no  new  light  except,  perhaps,  upon  the  law  of  sales,3  was,  despite 
its  crudity,  very  extensively  used  in  the  East  where  it  was 
never  superseded  by  Justinian's  Corpus  Juris.*  In  1880  was 

1  Kriiger,  Quellen,  §§  36,  37;   Karlowa,  Rdm.  RG.  i.  943,  960  sq. ;   Sohm, 
Institutes,  pp.  86,  90,  94. 

2  This  edition  was  undertaken  at  the  cost  of  the    Berlin  Academy.     See 
Bluntschili's  review,  in  the  Krit.  VJS.  f.  Rechtswissensch.,  N.F.,  vol.  iii.  (1880), 
pp.  548  sq. ;  also  Karlowa,  Rom.  RG.  i.  987  sq. 

*  Esmein,  Melanges  (Paris,  1886),  pp.  403, 413 ;  Goudy,  Muirhead,  p.  375,  note 
4.  It  seems  to  have  been  compiled  by  an  ecclesiastic  of  the  church  of  Syria. 

4  Dr.  L.  Mitteis  suggests  that  the  opposition,  undoubtedly  strong,  of  the 
Eastern  Monophysites  to  the  Orthodox  emperors  at  Constantinople  may  have 
contributed  to  make  the  Easterns  cling  the  closer  to  their  own  customary  law. 
He  thinks  that  the  law  of  the  "  Syrio-Roman  Book,"  where  it  departs  from  pure 
Roman  law  as  we  find  it  in  the  Corpus  Juris,  is  mainly  of  Greek  origin,  though 
with  traces  of  Eastern  custom.  See  his  Reichsrecht  und  Volksrecht  in  den  8st- 
lichen  Provinzen  des  Rdmischen  Kaiserreichs,  pp.  30-33. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  125 

published  by  Dareste,  at  Paris,  a  transcript  of  a  bundle  of  papy- 
rus leaves,  discovered  by  Dr.  Bernardakis  in  the  convent  on 
Mount  Sinai,  containing  what  have  proven  to  be  parts  of  a 
commentary  on  Ulpianus  ad  Sabinum,  written  after  the  Theo-  Parts  of  a 
dosian  Code,  but  before  that  of  Justinian,  and  therefore  be- 
tween  439  and  529.1 

12.   By  the  end  of  the  fourth  century  the  fabric  of  social  Christianity 
and  political  life  within  the  provinces  of  Italy,  Gaul,  and  Spain  canon  law. 
was  more  than  Roman,  —  it  was  fast  becoming  Christian. 
The  ancient  paganism  had  already  broken  down  before  the 
aggressive  force  of  the  Christian  church,  which,  after  maturing 
as  an  illegal  and  secret  society  under  ground,  finally  emerged 
as  a  triumphant  organization  with  a  well-knit  hierarchy. 
Such  organization,  inspired  by  a  Semitic  faith  drawn  from  a 
remote  corner  of  the  Empire,2  had  arisen  out  of  the  federation 
of  certain  religious  societies  or  congregations  (ecclesiae),  whose  Ecdesiae  as 
utmost  hope  from  the  state  was  that  in  the  guise  of  "  benefit  and  burial 
and  burial  societies  "  they  would  be  shielded  from  persecution  80C 
and  tolerated  in  the  enjoyment  of  their  communal  property.3 
Within  such  societies  was  developing  what  was  to  be  a  system 
of  constitutional  and  governmental  law,  which  would  endow 
the  overseer  (episcopus)  of  every  congregation  with  manifold  Systems  of 
powers,  and  alongside  of  it  a  system  of  punitive  law,  designed 
to  exclude  the  offender  from  all  participation  in  religious  rites, 
if  not  from  worldly  intercourse  with  the  faithful.4    Early  in 

1  Cf.  Dareste,  in  the  Nouv.  Rev.  Hist.,  vol.  iv.  (1880),  pp.  643  sq.     These 
fragments,  which  throw  some  light  on  the  law  of  guardianship,  are  printed  in 
Huschke's  Jurisprud.  Antejust.,  5th  ed.,  pp.  815  sq.,  and  (edited  by  Kriiger)  in 
the  Collectio  lib.  Antejust,  3d  vol.,  pp.  269  sq. 

2  "If  the  Aryan  world  of  Europe  has  learned  its  arts  and  its  laws  from  its 
own  elder  brethren,  it  is  from  the  Semitic  stranger  that  it  has  learned  'ts  faith." 
Freeman,  Comparative  Politics,  p.  28. 

*  Loning,  Geschichte  des  deutschen  Kirchenrecht*,  i.  195  ff. ;    Sohm,  Kirchen- 
recht,  p.  75.     The  former  asserts  and  the  latter  denies  that  in  the  intervals 
between  the  outbursts  of  persecution   the  Christian  communities  were  legally 
recognized  as  collegia  tenuiorum,  capable  of  holding  property. 

*  Loning,  op.  cit.,  i.  264 ;   Hinschius,  System  des  katholischen  Kirchenrechts, 
iv.  704;  Pollock  and  Maitland,  History  of  English  Law,  i.  2-4. 


126 


THE  SCIENCE  OF  JURISPRUDENCE 


Effect  of 
state  recog- 
nition of 
Christian- 
ity. 


It  supple- 
ments Ro- 
man law. 


Canons 
defined. 


the  fourth  century  Christianity  became  not  only  a  lawful  reli- 
gion, but  the  only  lawful  one. 

The  relinquishment  of  the  persecution  of  the  Christians 
(303)  was  promptly  followed  by  a  recognition  of  their  faith 
as  that  which  the  state  favored,  and  which  it  before  long  came 
to  protect  and  control.  So  soon  as  the  secular  monarch  placed 
his  authority  at  the  disposal  of  the  church,  the  changes  that 
followed  began  to  tell  on  private  law  as  well  as  upon  institu- 
tions. It  was  not,  however,  until  Christianity  had  become 
the  established  religion  of  the  Empire  that  we  find  evidence  of 
changes  directly  attributable  to  its  influence,  changes  which 
stand  rather  as  additions  to  the  moral  structure  built  up 
within  the  Corpus  Juris  Civilis,  largely  through  the  influence 
of  the  Stoic  philosophy,  than  as  substitutions  for  integral 
parts  of  that  structure.  While  the  church  could  not  attempt 
to  impose  her  precepts  upon  the  state  as  binding  rules  to  be 
substituted  for  the  imposing  fabric  of  Roman  law,  —  whose 
principles  were  definitely  settled  before  Christianity  aspired 
to  temporal,  as  well  as  spiritual,  authority,  —  she  was  able 
to  supplement  that  fabric  by  additions  drawn  from  such  pre- 
cepts. The  new  influence  thus  set  in  motion  was  felt  (1)  in 
the  promulgation  of  new  laws  made  to  meet  new  conditions; 
(2)  in  the  amending  of  existing  laws  to  meet  the  more  rigid 
morality  which  Christianity  inculcated.1  The  spirit  of  legis- 
lation was  thus  notably  changed  in  relation  to  such  subjects 
as  slavery  and  the  family,  including  the  vital  question  of  mar- 
riage and  divorce.  The  rules  enacted  by  the  assemblies  of 
the  early  church  for  the  regulation  of  its  relations  with  the 
secular  power,  its  own  internal  administration,  or  the  conduct 
of  its  members  were  called  canons  (icavove;,  regulae),  in 
contradistinction,  on  the  one  hand,  to  its  articles  of  doctrine 
(Sdy para)  and,  on  the  other,  to  the  enactments  of  the  civil  law- 


1  See  "The  Influence  of  Christianity  upon  the  Law  of  Rome,"  by  the  Rev. 
H.  W   Gibson,  Law  Magazine  and  Review,  August,  1906. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  127 

giver  (vopoi,  leges}.1    Thus  was  made  the  law  regulating  cer- 
tain civil  relations  which  the  church  claimed  the  right  to 
deal  with  because  they  have  a  religious  side,  the  law  for 
dealing  with  spiritual  offenses,  the  law  of  the  church  as  an 
organized  and  property-holding  society  or  group  of  societies.2 
Through  the  growth  of  the  canon  law  the  church  extended  her  Encroach- 
influence  into  all  departments  of  life,  and  in  that  way  the  legis-  municipal 
lation  of  the  church  came  to  embrace  many  subjects  which  Iaw' 
properly  belonged  to  the  domain  of  municipal  law. 
No  sooner  was  the  new  faith  made  lawful  than  the  state  Jurisdiction 

;  .      .  of  episcopal 

was  compelled  to  take  part  in  Christian  quarrels  and  con-  courts, 
tentions.  For  a  disciplinary  jurisdiction  over  clergy  and  laity 
the  state  conceded  a  wide  area,  in  which  the  bishops  were  per- 
mitted to  rule.3  As  arbitrators  in  purely  secular  disputes 
they  became  active ;  under  Constantino  it  is  even  probable  that, 
for  a  short  time,  one  litigant  might  force  an  unwilling  adver- 
sary to  accept  the  bishop's  tribunal.4  Certainly  the  episcopal 
jurisdiction  was  extended  by  Constantine  to  all  matters  which 
the  contending  parties  agreed  to  submit  to  it.5  This  so-called 
Audientia  Episcopalis  was  confirmed  by  several  later  emperors, 
and  the  bishop's  sentence  was  enforceable  by  the  civil  magis- 
trate. By  a  law  of  Justinian,  actions  brought  against  the 
clergy  were  directed  to  be  brought  before  the  bishop  in  the 
first  instance.  Finally  all  matters  connected  in  the  most  its  wide 
distant  way  with  the  church  or  religious  duties  were  deemed 

1  Though  first  applied  only  to  ordinances  of  a  church  assembly,  the  term 
"canon  "  was  so  extended  as  to  include  opinions  of  the  fathers  and  decretals  of 
the  popes. 

2  It  thus  appears  that  the  canon  law  has  the  church  for  its  source ;   while 
ecclesiastical  law  derives  its  binding  authority  solely  from  the  state,  and  treats 
of  the  church  as  a  religious  institution. 

*  Loning,  op.  cit.,  i.  262  ff. ;   Hinschius,  op.  cit.,  iv.  788  ff. 

4  Loning,  op.  cit.,  i.  293 ;   Karlowa,  Romische  Rechtsgeschichte,  i.  966.     This 
depends  on  the  genuineness  of  Constit.  Sirmond.  1. 

•  In  pursuance  of  apostolic  precept  (1  Cor.  vi.  1-6),  the  primitive  Christiana 
submitted  their  disputes  to  the  decision  of  their  bishops,  and  by  several  early 
councils  it  was  enacted  that  questions  between  churchmen  should  be   settled 
by  a  spiritual  tribunal. 


128  THE  SCIENCE  OF  JURISPRUDENCE 

proper  subjects  for  disposal  by  her  tribunals.  As  the  assist- 
ance of  the  clergy  was  required  on  the  occasion  of  baptisms, 
marriages,  and  deaths,  questions  involving  legitimacy,  mar- 
riage, and  succession  were  drawn  within  the  cognizance  of  the 
curiae  christianitatis ,  which  assumed  jurisdiction  over  not  only 
the  clergy,  but  over  all  who  were  under  the  obligation  of 
religious  vows,  as  well  as  widows  and  orphans  (personae 
miserdbiles')  and  minors.  Their  activity  extended  also  to  the 
domain  of  criminal  law,  punishing,  as  they  did,  both  ecclesias- 
tical and  religious  offenses,  such  as  blasphemy,  heresy,  simony, 
sacrilege,  and  such  violations  of  personal  and  social  morality 
as  adultery,  bigamy,  fraud,  and  perjury.1  By  the  middle  of 
the  twelfth  century  a  comprehensive  system  of  appeals  had 
been  built  up  from  the  bishops'  courts  to  the  Pope,  —  appeals 
at  almost  every  stage  of  almost  every  proceeding ;  and  in  that 
Appeals  to  way  the  whole  of  Western  Europe  was  drawn  within  the  juris- 
curia*n  diction  of  one  tribunal  of  last  resort,  the  Roman  curia.  The 
fourth  century  is  the  century  of  ecclesiastical  councils;  into 
the  debates  of  the  spiritual  parliaments  of  the  Empire  2  then 
passed  whatever  juristic  ability  and  whatever  power  of  or- 
ganization was  left  among  mankind.  About  500  there  la- 
bored at  Rome  on  the  foundations  of  the  Corpus  Juris  Canonici 
a  Scythian  monk,  who  called  himself  Dionysius  Exiguus,3 
whose  Collectio  Dionysiana  *  made  its  way  to  the  West,  where 
it  helped  to  spread  abroad  the  notion  that  the  popes  could 
contract  the  sphere  of  secular  jurisdiction  by  declaring,  even 
if  they  could  not  make,  law  for  the  church  universal.  A  col- 


1  As  to  struggles  over  the  demarcation  of  the  true  province  of  ecclesiastical 
law,  see  Brunner,  Deutsche  Rechtsgeschichte,  §  96 ;  Founier,  Les  officialites  au 
Moyen  Age;  Luchaire,  Manuel  des  institutions  franchises,  p.  121;  Hinschius, 
Kirchenrechts,  v.  373  ff. 

*  Sohm,  op.  cit.,  p.  443. 

*  Maassen,  Geschichte  der  Quellen  des  canonischen  Rechts,  i.  422  ff. ;  Tardif, 
Histoire  des  sources  du  droit  canonique,  p.  110. 

4  A  version  of  it  (Dyonysio-Hadriana)  was  sent  by  Pope  Hadrian  to  Charles 
the  Great  in  774.  Maassen,  op.  cit.,  i.  441. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  129 

lection  of  native  and  foreign  canons  was  in  circulation  in 
Spain  in  the  sixth  century,  and  after  being  added  to  at  various 
times  was  generally  received  toward  the  close  of  the  next  cen- 
tury under  the  name  Hispana,  from  the  country  of  its  origin. 
It  was  also  known  as  the  Collectio  Isidoriana  by  reason  of  its 
false  attribution  to  Bishop  Isidore  of  Seville,  who  died  in  636.1 
The  Hispana  circulated  among  the  Franks  in  a  more  or  less 
corrupt  form,  and  one  edition  of  it,  which  appeared  about  the 
middle  of  the  ninth  century,  has  become  notable  in  church 
history  as  the  Collectio  Pseudo- Isidoriana,  or  False  Decretals, 
compiled  no  doubt  by  a  single  author,  a  Prankish  ecclesiastic, 
between  the  years  840  and  860.2  While  the  untrustworthy 
nature  of  the  book  has  been  irrefragably  demonstrated,  it  is 
now  admitted  by  Protestant  writers  that  the  compilation  was 
produced  not  in  the  interest  of  the  Pope  but  of  the  bishops,  in 
order,  by  protecting  them  from  the  oppression  of  temporal 
princes  on  the  one  hand  and  ecclesiastical  councils  on  the 
other,8  to  correct  some  abuses  prevailing  among  the  Franks. 
The  Pseudo-Isidore  continued  to  be  the  chief  repertory  of  the 
canon  law  until  the  time  of  Gratian.4  But,  before  that  point 
is  reached,  reference  must  be  made  to  Hildebrand  who  suc- 
ceeded in  1073  to  the  papal  throne  as  Gregory  VII. ,  from  whose  Beginning 
memorable  contest  with  the  emperor,  Henry  IV.,  dates  the  Ltweerf  * 
commencement  of  that  long  series  of  contests  between  the  Pope  and 

emperor. 

papal  and  imperial  power  which  distracted  alike  the  Holy  See 


1  Maassen,  op.  cit.,  i.  667  ff. ;  Tardif ,  op.  cit.,  p.  1 17.     Printed  in  Migne,  Patrol., 
vol.  84. 

2  The  compiler  called  himself  Isidorus  Mercator,  and  he  seems  to  have  tried 
to  personate  Isidore  of  Seville. 

*  The  burden  of  the  contention  is  that  episcopal  rights  are  to  be  maintained 
against  the  chorepiscopi,  against  the  metropolitans,  and  against  the  secular 
power.     No  accusation  can  be  brought  against  a  bishop  so  long  as  he  is  de- 
spoiled of  his  see  :  Spoliaius  episcopus  ante  omnia  debet  restitui. 

*  It  was  everywhere  accepted  without  question  until  Cardinal  Nicholas  of 
Cusa,  in  the  fifteenth  century,  expressed  doubts  of  the  genuineness  of  some  of 
its  contents.     During  the  next  hundred  years  its  untrustworthy  nature  was 
demonstrated  by  Erasmus  and  others. 


130 


THE  SCIENCE  OF  JURISPRUDENCE 


Clergy  as 
a  distinct 
order. 


Conflict  of 
jurisdic- 
tions. 


Gratian, 
founder  of 
the  science 
of  canon 
law. 


and  the  Empire.  The  leading  ideas  of  Gregory's  policy  were 
the  complete  establishment  of  the  supremacy  of  the  Papacy 
within  the  church,  and  the  supremacy  of  the  ecclesiastical 
over  the  civil  power.  In  order  to  make  effectual  the  assertion 
of  the  supremacy  of  the  church  over  the  state,  Gregory  labored 
to  bring  about  "the  establishment  of  the  clergy  as  a  distinct 
order,  animated  by  one  universal  corporate  spirit,  and  cut  off 
from  those  ties  of  citizenship  and  kindred  which  bind  men  to- 
gether in  earthly  bonds."  1  When  the  conflict  grew  into  over- 
shadowing prominence  during  the  thirteenth  and  fourteenth 
centuries,  while  the  disputants  admitted  that  the  Papacy  and 
the  Empire  were  both  ordained  of  God,  and  that  each  in  its 
own  sphere  had  universal  jurisdiction,  they  failed  to  agree 
upon  the  relations  of  the  two  jurisdictions  to  each  other. 
Whether  the  supreme  temporal  ruler,  who  was  admitted  to  his 
high  office  through  consecration  at  the  hands  of  the  spiritual 
chief  of  Christendom,  was  in  the  last  resort  subordinate  to  the 
latter  as  the  lesser  to  the  greater  light,  or  whether  their  dig- 
nities were  coordinate  and  coequal,  were  questions  over  which 
was  fought  the  great  battle  between  Pope  and  emperor  in  the 
days  of  the  world's  wonder,  Frederick  II.2 

At  a  comparatively  early  stage  of  that  struggle  the  growth 
of  the  canon  law  was  quickened  by  the  organizing  hand  of  Gra- 
tian, a  monk  of  Bologna,  who  is  regarded  as  the  founder  of  the 
science  of  canon  law  by  reason  of  his  Corcordia  discordantium 
canonum,  generally  known  as  the  Decretum  Gratiani,  or  sim- 
ply the  Decretum,  published  between  the  years  1139  and  1142.3 

1  Freeman,  Norman  Conquest,  iv.  287. 

3  The  contention  which  Frederick  left  unconcluded  was  continued  in  the 
next  age  by  two  famous  disputants.  St.  Thomas  of  Aquin,  in  his  treatise 
Of  the  Government  of  Princes,  defended  the  supremacy  of  the  Papacy,  on 
the  one  hand ;  while  Dante,  in  his  treatise  De  Monarchia,  maintained  the 
independence  of  the  Empire,  on  the  other.  As  to  the  authorship  of  the 
De  Regimine  Principum,  see  Reformateurs  et  Publicestes  de  I' Europe.  Paris, 
1864. 

3  See  Schulte,  Geschichte  der  Quellen  des  Canonischen  Rechts,  i.  48.  A  some- 
what later  date  used  to  be  assigned  to  the  work. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  131 

Some  thirty  or  forty  years  before  a  school  of  Roman  law  had 
been  founded  at  Bologna  by  Irnerius.  The  church  took 
up  the  challenge  in  the  person  of  Gratian,  who  was  the 
first  to  teach  as  a  separate  science  the  canon  law,  previously 
regarded  as  a  branch  of  theology,  and  as  such  studied  only  in  Scope  of 
the  seminaries  attached  to  cathedrals  or  monasteries.  While 
thus  engaged,  Gratian  undertook  to  extract  the  entire  sub- 
sisting law  of  the  church  from  the  mass  of  canons,  decretals, 
writings  of  the  fathers,  and  ecclesiastical  historians,  and  to  com- 
bine it  in  one  systematic  whole.  It  is  impossible  not  to  per-  its  method, 
ceive  both  the  form  and  spirit  of  the  Digest  in  that  part  of  his 
work  taken  up  with  the  discussion  of  hypothetical  cases  (causae), 
in  which,  after  stating  the  various  questions  of  law  (questiones) 
involved,  he  endeavors  to  answer  them  by  sorting  and  weigh- 
ing the  "authorities"  that  bear  upon  them.  Thus  Gratian 
became  the  founder  of  a  school  of  ecclesiastical  lawyers  well 
grounded  in  Roman  law,  who  applied  to  the  Decretum  and  the 
subsequent  decretals  the  same  methods  they  employed  upon  Bologna's 
Code  and  Digest.  From  the  twelfth  century  Bologna  Uni-  f^dtieg 
versity  possessed  two  faculties  of  law,  —  a  civil  and  a  canon, 
the  members  of  the  latter  being  called  doctores  decretorum,  a 
title  to  be  won  only  after  six  years'  previous  study.  Those 
who  graduated  in  both  faculties  were  doctors  utriusque  juris. 
In  that  way  the  universities  supplied  the  church  with  a  body 
of  well-trained  lawyers  capable  of  advancing  the  administra- 
tion of  the  canon  law  in  the  ecclesiastical  courts.  Gratian  had 
collected  in  the  Decretum  the  papal  decretals  down  to  1139. 
After  that  time,  owing  to  the  struggles  of  popes  and  emperors, 
and  the  general  extension  of  ecclesiastical  jurisdictions,  the 
outflow  of  decretals  for  the  whole  of  Western  Christendom 
greatly  increased  in  volume.  Under  Alexander  III.  and  Inno- 
cent III.  it  was  rapid  indeed ;  the  latter  (pater  juris')  is  said  Decretaies 
to  have  published  4000  laws.  Such  subsequent  constitutions 
went  by  the  name  of  decretales  extravagantes  (i.e.  extra  decre- 


132  THE  SCIENCE  OF  JURISPRUDENCE 

turn  Gratiani  vagantes).1  All  collections  of  them  were  super- 
seded, however,  by  the  grand  collection  published  in  1234  by 

Code  of        Gregory  IX.,  who  commissioned  his  chaplain,  Raymond  of 

'•egory  .  pennafor^e)  formerly  a  professor  of  Bologna,  to  digest  into  a 
code  the  decretals  since  the  time  of  Gratian.  The  laws  are 
in  the  form  of  decisions  pronounced  in  cases  submitted  to  the 
Pope  from  all  parts  of  Christendom,  including  several  cases 
from  England  and  Scotland.2  Unlike  the  compilation  of  Gra- 
tian the  code  of  Gregory  IX.  became  "enacted  law";  every 

Liber  sentence  it  contained  was  law ;  and  all  decretals  that  had  not 

been  received  into  it  were  thereby  repealed.  The  Liber 
Sextus,  published  by  Boniface  VIII.  in  1298,  was  so  called  be- 

ciementinae.  cause  it  was  put  forth  as  a  supplement  to  Gregory's  five  books. 
Another  collection  of  decretals  known  as  Clementinae  was  pub- 
lished in  1313,  and,  after  revision,  was  promulgated  in  its 
present  form  by  his  successor,  Pope  John  XXII.,  in  1317.8 
While  the  Clementinae  were  the  last  of  the  collections  formally 
promulgated  by  the  popes,  it  is  generally  said  that  the  Corpus 
Juris  Canonid  was  completed  in  1500  by  the  addition  of  an- 
other collection  without  statutory  authority,  known  as  the 
Extravagants ,  consisting  partly  of  Extravagantes  Johannis 
XXII.,  partly  of  Extravagantes  Communes.  And  yet  as  the 

Gregory  ix.,  canon  law  was  intended  by  its  authors  to  reproduce  and  rival 
*ne  imperial  jurisprudence,  the  completion  of  the  mighty 
fabric  should  really  be  marked  by  the  work  of  Gregory  IX., 
who  was  the  first  to  consolidate  it  into  a  code,  and  who  sought 
the  fame  and  received  the  title  of  the  church's  Justinian. 

1  Of  the  fifteen  known  collections  five  especially,  in  contrast  to  that  of 
Gregory  IX.,  are  called  the  CompUationes  Antiquae,  which  attained  a  high 
reputation  in  the  schools  and  the  courts.  The  oldest  of  them,  CompUatio 
Prima,  is  printed  in  Labb£,  A-ntiquae  Collectiones  Decretalium.  Paris,  1609. 
See  also  Schulte,  loc.  tit.,  i.  84,  85,  88,  187-189. 

3  For  a  list  of  the  latter  see  Ecclesiae  Scoticanae  Statute,  ii.  232.  The  original 
name  of  Gratian 's  work  was  Libri  extra  (sc.  Decreturn),  which  was  abbreviated 
to  X.  for  convenience  in  citation,  e.g.  c.  9,  X.,  de  eo  qui  cognovit  (iv.  13). 

*  The  Sext  is  referred  to  by  "in  vi.  to"  or  "in  6";  the  Clementines  by  Clem., 
and  the  number  of  book  and  title  (e.g.  c.  1,  de  summa  trin.  in  Clem.  I.  1). 


EXTERNAL  HISTORY  OF  ROMAN  LAW  133 

13.   During  the  fifth  century  four  of  the  Western  provinces  Teutonic 
of  the  Roman  Empire  —  Britain,  Gaul,  Italy,  and  Spain  — 
were  in  turn  overrun  by  hordes  of  Teutonic  invaders  who  came 
to  settle  down  permanently  on  the  conquered  soil.    The  wan-  codes- 
dering  folks  moved  in  the  full  order  of  their  nations,  reproducing 
within  the  appropriated  areas  their  entire  scheme  of  barbaric 
life  —  legal,  military,  political.     As  stated  heretofore,  the  pri- 
mary bond  which  united  the  people  who  composed  a  Teutonic 
nation  was  a  personal  one, — the  national  king  was  the  first 
among  the  people,  the  embodiment  of  the  national  being,  but  Primitive 
not  the  king  of  a  particular  area  or  region  of  territory.    The  of 
idea  of  sovereignty  was  not  associated  in  the  Teutonic  mind 
with  dominion  over  a  particular  portion  or  subdivision  of  the  tribal- 
earth's  surface.    Alaric  was  king  of  the  Goths  wherever  the 
Goths  happened  to  be,  whether  upon  the  banks  of  the  Tiber, 
the  Tagus,  or  the  Danube.    The  conception  of  sovereignty 
which  the  Teutons  brought  with  them  from  the  forest  and  the  Like 
steppe  was  distinctly  personal  or  tribal  and  not  territorial.1  onaw! " 
Their  conception  of  law  was  likewise  personal.    The  Lex 
Salica,  for  example,  was  the  law  of  a  race,  it  was  not  the  law 
of  a  district.    As  the  Frankish  realm  expanded,  there  ex- 
panded with  it  a  wonderful  "  system  of  personal  laws." 2 
Wherever  the  Swabian  might  be,  he  lived  under  his  Alamannic 
law;    or,  to  state  it   more  vividly,  he  lived  Alamannic  law 
(legem  vivere).    As  Bishop  Agobard  of  Lyons  has  described  it, 
with  some  exaggeration  no  doubt,  often  five  men  would  be 
walking  or  sitting  together  and  each  of  them  would  own  Three 
a  different  law.3    The  three  continental  streams  of  Teutonic  Teutonic0 
invasion,  which  flowed  over  the  Latinized  and  Christianized  mvasion- 
provinces  in  question,  were  unequal  both  in  force  and  effect. 

1  See  above,  p.  19. 

2  Brunner,  Deutsche  Recktsgeachichte,  i.  259 ;  Schroder,  Lehrbuch  derdeutschen 
Rechtsgeschichte,  p.  225;   Esmein,  Cours  d'histoire  du  droit  franqais,  p.  57. 

1  Agobardi,  Opera,  Migne,  Patrol.,  vol.  104,  col.  116 :  "Nam  plerumque  con- 
tingit  ut  simul  eant  aut  sedeant  quinque  homines  et  nullus  eorum  communem 
legem  cum  altero  habeat." 


134  THE  SCIENCE  OF  JURISPRUDENCE 

In  Gaul  the  Teuton  made  the  deepest  impression,  in  Italy  the 
least;  while  in  Spain  his  influence  occupies  a  middle  place  be- 
tween the  two.  Only  in  the  domain  of  polity  and  military 
organization  can  the  Teutonic  element  claim  in  the  new  com- 
bination a  position  of  dominant  importance.  The  leading 
principles  which  are  worked  out  in  the  constitutional  history 
of  France  and  Spain  are  Teutonic;  an  assertion  which  may 
Older  be  applied  in  a  modified  form  to  the  states  of  Northern  and 

survived011  Southern  Italy.1  In  Italy,  Gaul,  and  Spain  the  older  civiliza- 
tion survived.  While  taking  to  itself  many  elements  of  Teu- 
tonic life,  it  continued  to  be  Roman  and  Christian,  it  pre- 
served throughout  its  identity  and  continuity.  The  land  was 
System  of  generally  divided  between  the  conquerors  and  the  conquered 
laws008  according  to  certain  fixed  proportions.  The  Roman  native 
was  permitted  to  enjoy  his  own  laws,  while  the  conqueror 
claimed  for  himself  his  own  barbaric  code.2  In  that  way 
Teutonic  life  and  law  settled  down  by  the  side  of  Roman  life 
and  law,  and  a  struggle  for  the  mastery  was  the  natural  con- 
sequence. In  the  kingdoms  founded  by  the  Goths  and  Bur- 
gundians  the  intruding  Teutons  were  only  a  small  part  of  a 
population  the  bulk  of  which  was  Gallo-Roman.  It  was  there- 
fore natural  that  the  Romani  should  continue  to  live  their  own 
law.  As  the  Salian  Franks  spread  over  Gaul,  while  retaining 
for  themselves  their  own  Lex  Salica,  they  conceded  to  the  con- 
quered races  the  right  they  claimed  for  themselves.  As  their  vic- 
torious career  gave  the  principle  an  ever  widening  scope,  it  was 
carried  into  Italy,  and  finally  into  the  very  city  of  Rome  itself. 
Vulgarized  As  the  natural  result  of  such  contact  German  law  became 
Roman  law.  more  civilized,  while  Roman  law  became  sadly  barbarized  or 
.rather  vulgarized.  Wherever  law  was  administered  among 

1  "The  republican  history  of  the  North  and  the  feudal  system  of  the  South, 
the  municipalities  of  Lombardy,  and  the  parliaments  of  Naples  are  much  more 
German  than  Roman."     Stubbs,  Constitutional  History,  i.  7. 

2  "The  Frank  was  judged  by  the  Salic  or  Ripuarian  code ;  the  Gaul  followed 
that  of  Theodosius."     Hallam;  Middle  Ages,  i.  154. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  135 

the  Romani,  it  seems  to  have  been  in  the  main  a  traditional, 
customary  law  that  paid  little  heed  to  written  texts;  and 
so,  we  are  told,  it  was  ein  romisches  Vulgarrecht  which  stood 
to  pure  Roman  law  in  the  same  relation  as  that  in  which 
the  vulgar  Latin  or  Romance  that  the  people  talked  stood 
to  the  literary  language.1 

The  German  conception  of  liberty  rested  upon  the  principle 
that  the  people  were  governed  by  laws  which  they  had  a  direct 
share  in  enacting.  The  laws  of  the  Franks  were  enacted 
consensu  populi  et  constitutione  regis.  But  in  the  course  of 
time  the  assemblies  of  those  capable  of  bearing  arms  appear 
to  have  been  gradually  superseded  by  a  select  council,  com- 
posed of  the  two  orders  of  the  clergy  and  nobility ;  and  if  the 
body  of  the  people  attended  their  deliberations,  it  seems  to 
have  been  more  in  the  capacity  of  spectators  than  of  actual 
legislators.  Such  was  the  form  of  the  constitution  in  the  time 
of  Charles  the  Great,  in  whose  name  a  great  proportion  of  the 
imperial  ordinances  known  as  capitularies  were  promulgated.  Capitularies 
In  an  assembly  held  at  Aachen  (802)  the  lately  crowned  em-  °he  Great! 
peror  issued  a  capitulary 2  revising  the  laws  of  all  the  races 
that  obeyed  him,  with  a  view  to  harmonizing  and  correcting 
them.  In  his  summary  of  what  is  now  known  with  regard  to 
the  capitularies,  Savigny  says:  "All  royal  enactments,  par-  Savigny's 
ticularly  in  later  times,  were  called  capitularia,  or  capitula.3  s 
The  king  had  a  double  character, — the  one  as  chief  of  each 
individual  tribe,  and  the  other  as  head  of  the  whole  nation. 
Hence  the  capitularies  also  are  of  two  classes, — those  defining 
the  law  of  a  particular  race,  e.g.  ( Capitula  addita  ad  Legem 
Salicam,'  and  those  of  general  application  over  the  whole  Frank 
territory."  While  a  superstructure  of  capitularies  might  be 

1  Brunner,  op.  cit.,  i.  255. 

2  Pertz,  Man.  Germ.  Hist.  Leges,  iii.  (legg.  I.). 

s  See  also  Brunner,  op.  cit.,  i.  374 ;  Schroder,  op.  cit.,  p.  247 ;  Esmein,  op. 
cit.,  p.  116.  The  capitularies  are  edited  in  the  Monumenta  Germanica  by 
Pertz  and  by  Boretius  and  Krause. 


136 


THE  SCIENCE  OF  JURISPRUDENCE 


The  forged 
capitularies. 


Transition 
from  per- 
sonal to 
territorial 
organi- 
zation. 


An  age 
in  which 
no  one 
legislates. 


quickly  reared,  the  lex  of  a  folk  might  not  be  so  easily  altered. 
During  the  golden  age  of  the  Frankish  supremacy,  which 
closely  centers  around  the  year  800,  there  was  so  much  definite 
and  formal  legislation  that  in  827  Ansegis,  Abbot  of  St. 
Wandrille,  collected  some  of  the  capitularies  into  four  books.1 
In  842  some  one  who  called  himself  a  deacon  of  the  church  of 
Mainz  and  gave  his  name  as  Benedict  added  three  other  books 
containing  would-be  but  forged  capitularies,2  with  the  same 
bent  as  the  decretals  concocted  by  the  Pseudo-Isidore,  men- 
tioned heretofore.  Karolingian  capitularies  or  statutes  which 
enact  territorial  laws  mark  an  important  stage  in  the  general 
process  of  transition  from  personal  or  tribal  to  territorial  or- 
ganization. Out  of  that  process,  which  transformed  Rex 
Francorum  into  Rex  Franciae,  has  arisen  the  state  system 
of  modern  Europe  in  which  the  idea  of  territorial  sovereignty 
and  territorial  laws  is  the  basis  of  all  international  relations.3 
In  order  to  unfold  the  entire  process,  it  is  necessary  to  bridge 
the  chasm  which  has  been  called  "the  darkest  age"  or  "the 
diplomatic  age,"  whereby  is  meant  that  its  law  must  be 
hazardously  inferred  from  diplomata,  from  charters,  from 
conveyances,  from  privileges  accorded  to  particular  churches 
or  particular  towns.  It  is  an  age  in  which  no  one  legislates. 
According  to  the  French  historians  the  last  capitularies  which 
bear  the  character  of  general  laws  are  issued  by  Carloman  II. 
in  884,  and  the  first  legislative  ordonnance  is  issued  by  Louis 
VII.  in  1155.4  While  much  is  dark  and  disputable,  the  age  of 
the  folk  laws  and  the  capitularies,  "the  Frankish  time,"  can 
be  restored.  French  and  German  historians  are  then  com- 

1  Brunner,  op.  cit.,  i.  382;   Schroder,  op.  cit.,  p.  251. 

8  He  brought  the  number  of  capitula  to  1697,  afterwards  increased  by  sup- 
plements to  2100.  The  history  of  the  later  editions  will  be  found  in  the  preface 
of  Baluze  to  his  great  collection.  Paris,  1677.  2  torn.,  fol.  For  an  analysis  of 
the  contents  of  the  capitularies,  see  Guizot,  His.  de  la  Civilization,  Lee.  XXI. 
and  XXV.  See  also  Michelet,  Origines  du  Droit  Franyais, 

*  See  above,  p.  20. 

4  Esmein,  Cours  d'histoire  du  droit  /rancots,  pp.  487-488 ;  Viollet,  Histoire  du 
droit  civil  franqais,  p.  152. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  137 

pelled  rapidly  to  pass  through  several  centuries  to  a  new  point 

of  view,  when  they  take  their  stand  in  the  thirteenth  among 

law  books  which  have  the  treatises  of  Glanvill  and  Bracton  for 

their  English  equivalents.    The  problem  of  problems  is  to 

connect  that  new  order  of  things  with  the  old,  to  make  the 

world  of  "the  classic  feudalism"  1  grow  out  of  the  world  of  Growth  of 

the  folk  laws,  through  a  process  in  which  the  innermost  texture  feudalism'1' 

of  human  society  was  being  changed,  in  which  local  customs  °^°^ge 

were  issuing  from  and  then  consuming  the  old  racial  laws.2 

In  the  light  of  the  foregoing  sketch  of  the  Teutonic  system  German 
of  personal  laws  it  will  be  easier  to  describe  the  nature  of  the  ticlpated 
Romano-Barbarian  codes,  the  title  usually  applied  to  three  ^^man's 
collections  compiled  in  Western  Europe  after  it  had  thrown  off 
the  sovereignty  of  Rome.     As  Roman  private  law,  criminal 
law,  and  law  of  procedure  remained  in  force  in  the  kingdoms 
founded  by  the  German  conquerors  within  the  limits  of  the 
Empire,  so  far  as  the  Roman-born  section  of  the  population 
was  concerned,  the  German  kings  were  prompted  by  self- 
interest  to  anticipate  Justinian's  work  of  codification.     The 
first  step  was  taken  by  Theodoric,  king  of  the  Ostrogoths,  Edictum 
whose  Edictum  Theodorici,3  dating  from  about  the  year  500, 
embodied  a  lame  attempt  to  set  out  in  a  brief  form,  with  no 
systematic  arrangement,  the  leading  provisions  of  Roman  law 
in  all  its  branches,  public  and  private,  especially  criminal  law 
and  procedure,  the  materials  being  drawn  from  the  writings 
of  the  jurists,  from  the  Gregorian,  Hermogenian,  and  Theo- 
dosian  codes  and  the  later  Novels.     It  is  worthy  of  note  that 
this  compilation  was  intended  to  apply  not  only  to  the  Roman 

1  "La  f eodalite'  classique. "    M.  Flash,  Les  origines  de  I'ancienne  France,  ii.  551. 

1  It  "is  a  task  which  is  being  slowly  accomplished  by  skillful  hands;  but  it 
is  difficult,  for,  though  materials  are  not  wanting,  they  are  not  of  a  strictly  legal 
kind;  they  are  not  laws,  nor  law  books,  nor  statements  of  law."  Pollock  and 
Maitland,  History  of  English  Law,  i.  19. 

'  The  text  was  first  published  in  1579  from  a  manuscript  of  Pithou'sin  an  ap- 
pendix to  Cassiodorus's  Variorum  Libri  XII.  See  also  Rhon,  Comment,  ad  Edict. 
Theodorici,  Halle,  1816,  the  last  separate  edition. 


138 


THE  SCIENCE  OF  JURISPRUDENCE 


Lex 

Romano 

Burgun- 

d  in  num. 


Breviarium 
Alarici. 


but  also  to  the  Gothic  subjects  of  the  kingdom,1  an  aspiration 
which  could  hardly  have  been  fully  realized,  certainly  so  far 
as  Gothic  family  law  was  concerned.2  The  Lex  Romano, 
Burgundionum,  formerly,  owing  to  a  mistake  of  a  transcriber, 
called  Papianus,5  is  a  somewhat  consecutive  and  homogeneous 
compilation  which  King  Gundobald,  in  publishing  in  501  his 
code  of  native  law  (lex  Burgundionum,  or  Gundobada),  had 
promised  should  be  prepared  for  the  use  of  his  Roman  sub- 
jects.4 Its  statutory  Roman  sources  are  the  same  as  those  of 
the  Breviary,  and,  owing  to  certain  close  resemblances  to 
some  of  the  "interpretations"  in  that  work,  many  jurists 
think  it  must  be  of  later  date  than  506.  It  deals  with  private 
law,  criminal  law,  and  judicial  procedure,  distributed  through 
forty-seven  titles,  and  arranged  very  much  after  the  order  of 
the  Gundobada,  from  which  it  has  a  few  extracts.  The 
jurisprudential  authorities  referred  to  are  Gaius  and  Paul. 
Far  more  ambitious  and  important  than  either  of  the  foregoing 
is  the  Lex  Romana  Visigothorum,  or  Breviarium  Alarici,  issued 
in  506  by  the  king  of  the  Western  Goths,  to  whom  belonged 
Spain  and  that  part  of  Gaul  which  lay  south  of  the  Loire,  a 
region  whose  geographical  position  had  sheltered  it  to  a  notable 
extent  from  the  ravages  of  the  Teutonic  invasion.  Here, 
where  the  genuine  spirit  of  Rome  maintained  its  best  energies, 
Alaric  II.  compiled,  through  commissioners  appointed  with 
the  approval  of  the  bishops  and  nobles,  the  famous  Breviary 5 

1  See  Brunner,  Deutsche  Rechtsgeschichte,  vol.  i.  (1887),  pp.  365  ff. 

2  Gothic  customs  must  have  continued  to  prevail.     Cf.  Savigny,  Gesch.  d. 
v.  R.   ii.    172   sq. ;    Stobbe,  Gesch.    der  deutsch.   RechtsqueUen  (Leipzig,  1860- 
1864),  i.  94  sq. 

3  Brunner,  loc.  tit.,  p.  354. 

*  The  Lex  Romana  applied  to  the  Roman,  the  record  of  German  tribe  law 
to  the  German  members  of  the  kingdom.  To  the  Leges  Romanae  were  opposed 
what  are  now  generally  known  as  the  Leges  Barbarorum,  including  Lex 
Salica,  Lex  Burgundionum,  Visigothorum,  etc.  For  attempts  to  reconstruct 
the  genealogy  of  the  various  Germanic  systems  in  which  the  order  of  date  is 
very  different  from  the  order  of  barbarity,  see  Ficker,  Untersuchungen  zur 
Erbenfolge,  1891-1895 ;  Ficker,  Ueber  nahere  Verwandtschaft  zwischen  gothisch- 
spanischem  und  narwegisch-islandischem  Recht  (Mittheilungen  des  Instituts 
fur  osterreichische  Geschichtsforschung,  1888,  ii.  456  ff.). 

8  It  was  first  styled  Breviarium  by  the  writers  of  the  sixteenth  century,  and 


EXTERNAL  HISTORY  OF  ROMAN  LAW  139 

which  stood  forth  for  so  long  a  time  as  the  Lex  Romano,  of  Lex 
Western  Europe.     In  its  composition  its  authors  adopted  a  weatern° 
system  similar  to  that  subsequently  employed  by  Justinian.  Eur°Pe- 
Instead  of  attempting  to  expound  Roman  law  upon  a  plan 
of  their  own,  they  wisely  preferred  to  preserve  its  classic  form 
as  well  as  its  substance  by  collecting  excerpts  from  its  tradi- 
tional and  statutory  sources.     For  the  leges  they  utilized  some 
400  of  the  3400  enactments  of  the  Theodosian  Code,  and  about 
30  of  the  known  104  post-Theodosian  Novels ;  for  the  jus  the 
Institutes  of  Gaius  in  an  abridged  form  (the  so-called  "Gothic 
Epitome  of  Gaius"),  Paul's  Sentences,  portions  of  the  Codex 
Gregoriamis  and  Hermogenianus,   concluding  it   all  with  a 
single  sentence  from  the  first  book  of  Papinian's  Responses.1 
Leaving,  as  a  general  rule,  the  selected  passages  unaltered,  the 
compilers,  excepting  only  the  work  of  Gaius  adopted  in  an 
abbreviated  form,  annexed  to  them  an  interpretatio  regulating 
in  a  judicious  way  the  application  of  Roman  law  in  the  king- 
dom of  the  Visigoths,2  such  "interpretation"  resembling  that 
of  the  Twelve  Tables  in  that  it  is  often  not  so  much  explana- 
tory of  the  text  as  qualificative  or  corrective  of  it.    To  the 
method  of  its  composition,  through  which  the  best  portions  of  Best 
the  imperial  law  were  preserved  in  their  integrity,  must  be  j^eriaiia 
attributed  the  fact  that  while  the  lame  arid  imperfect  epitomes  Preserved- 
contained  in  the  codes  of  the  Ostrogoths  and  Burgundians 
lost  all  practical  importance  with  the  destruction  of  those 
kingdoms,  the  Breviarwn  lived  on  and  exercised  a  domi- 
nating influence  upon  Romanic  law  in  Southern  France  and 
some  parts  of  South  Germany  down  to  the  eleventh  century.8 

was  first  published  in  full  by  Sichard  (Basle,  1528).  The  authoritative  edi- 
tion is  that  of  Haenel,  Lex  Rom.  Wisigothorum  ad  LXXVI.  libror.  manuscriptor. 
fidem  recognovit  .  .  .  Gust.  Haenel,  Berlin,  1849.  See  Kriiger,  Quellen,  §  40. 

1  Brunner,  loc.  cit.,  pp.  356,  357 ;    Karlowa,  Rdm.  Rechts,  i.  976. 

»  Cf.  Fitting,  ZS.  fur  RG.,  vol.  ii.  (1873),  pp.  222  ff. 

*  Until  the  rise  of  the  Bologna  school  in  the  twelfth,  it  was  from  it  rather  than 
from  the  works  of  Justinian  that  Western  Europe  derived  its  scanty  knowledge 
of  Roman  law.  Haenel,  Prolegomena;  Stobbe,  i.  65  sq. ;  Karlowa,  Rdm.  RG. 
i.  976  sg. ;  Savigny,  Gesch.  d.  r.  R.  ii.  37  sq. 


140 


THE  SCIENCE  OF  JURISPRUDENCE 


glossators. 


Corpus 
Juris 
Civilis  of 
Justinian. 


From  the  sixth  century  onward  a  rivalry  existed  between  this 
Corpus  Juris  of  Alaric  and  the  Corpus  Juris  of  Justinian,  the  one 
predominating  in  the  East,  the  other  in  the  West,  —  a  rivalry 
Work  of  the  never  terminated  until  the  school  of  glossators,  who  revived 
in  the  twelfth  century  the  study  of  Roman  law  in  Italy  where 
the  Corpus  Juris  of  Justinian  was  in  force,  took  it  as  the  start- 
ing point  of  the  triumphant  movement  that  extended  Italian 
jurisprudence  to  the  West.  Thus,  as  Sohm  has  graphically 
expressed  it,  "  the  Corpus  Juris  of  the  German  King  was  de- 
stroyed by  the  Corpus  Juris  of  the  emperor  of  Byzantium."  l 
14.  Justinian's  work  of  codification  was  simply  a  comple- 
tion in  the  East  of  the  movement  which  had  produced  in  the 
West,  some  thirty  years  before,  the  collections  of  laws  made 
by  the  barbarian  kings  for  the  government  of  their  Roman 
subjects.  Long  before  their  time  Theodosius  had  laid  down 
without  executing  the  comprehensive  plan  which  Justinian 
finally  carried  out.  That  plan  involved  no  less  than  the  codi- 
fication of  the  mass  of  statutes  (leges)  and  jurist-made  law 
(jus)  that  had  been  accumulating  during  a  period  of  a  thou- 
sand years.  As  early  as  528  2  Justinian  informed  the  senate 
that  he  had  nominated  a  commission  of  ten  members,  includ- 
ing Theophilus,  who  was  a  professor  at  Constantinople,  and 
two  barristers  of  distinction  to  compile  a  new  code  on  the  basis 
of  the  Codex  Gregorianus  and  Hermogenianus  (then  counted 
among  the  leges),  the  Codex  Theodosianus  and  the  later  ordi- 
nances. The  work  was  finished  and  published  in  529.3 
When  by  reason  of  subsequent  amendments,  especially 
through  the  "Fifty  Decisions,"  4  a  remodeling  of  the  Code  of 
529  became  necessary,  it  was  repealed  and  a  new  one  published 

1  Inst.  p.  95. 

3  Const.,  "Haec  quae  necessario  "  (of  February  13,  528),  which   forms  the 
first  preface  to  the  Code. 

*  By  a  constitution  of  April  7,  529,  addressed  to  Menna,  one  of  the  praetorian 
prefects,  it  was  ratified  under  the  name  of  Justinianeus  Codex.     Const.,  "  Summit 
rei  publicae,"  —  the  second  preface  to  the  Code. 

*  See  below,  p.  144. 


First  Code 
published 
in  529, 
second  in 
534. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  141 

in  534,  which  is  the  Code  we  now  possess.1    Its  composition 

was  committed  by  Justinian  to  Tribonian,  Dorotheas,  and  two 

or  three  others  under  a  commission  not  preserved,  but  whose 

scope  is  indicated  in  the  constitution  Cordi  nobis  of  Novem-  Constitution 

ber  16,  534,  whereby  the  new  collection  was  ratified  under 

the  name  of  Codex  Justinianeus  repetitae  praelectionis.    This 

Code,  in  twelve  books,  is  a  collection  of  imperial  constitutions. 

including  the  separate  decisions  of  the  old  type  since  Hadrian 

and  the  general  ordinances  of  the  new  type,  the  earliest  in  the 

collection  being  a  rescript  of  Hadrian's  and  the  latest  a  law  of 

Justinian's  dated  about  a  fortnight  before  the  Code  was  pub- 

lished.    Its  arrangement  follows  that  of  the  edict  rather  more  Arrange- 


closely  than  does  the  Digest,  and  it  contains  much  in  reference  ^w"  edict. 


to  political,  ecclesiastical,  criminal,  municipal,  fiscal,  and 
military  institutions  that  has  no  counterpart  in  the  Digest. 
The  collection  contains  over  4600  enactments,  of  which  more 
than  one  half  were  originally  rescripts,  arranged  chronologi- 
cally under  their  several  titles,  the  name  of  the  emperor  from 
whom  each  proceeded,  and  the  body  or  individual  to  whom  it 
was  addressed  being  mentioned  at  the  head  of  it,  and  the  place 
and  time  of  its  issue  (if  known)  at  the  end.  By  the  constitution 
Cordi  nobis  of  November  16,  534,  addressed  to  the  senate  and 
prefixed  to  it,  the  second  edition  of  the  Code  was  given  statu- 
tory force  from  December  29  of  the  same  year.  The  name  of  Novels. 
Novels  (novellae  constitutions  post  Codicem)  is  given  to  the 
enactments  of  Justinian  subsequent  to  the  publication  of  the 
Code,  of  which  the  greater  number  relate  to  public  and  eccle- 
siastical affairs.  Those  dealing  with  private  law,  especially 

1  All  copies  of  the  earlier  Code  have  entirely  disappeared,  while  the  Code 
which  has  come  down  to  us  is  in  a  comparatively  incomplete  form,  a  fact  due 
probably  to  its  not  being  prescribed  as  the  subject  of  professional  lectures  at 
all,  being  left  to  private  industry  in  the  fifth  year  of  study.  A  Veronese  palimp- 
sest (of  the  same  date  as  the  Florentine  manuscript  of  the  Digest)  was  at  one 
time  complete,  but  is  now  full  of  lacunae.  The  remaining  manuscripts  are  all 
based  on  epitomes  of  the  first  nine  books  of  the  Code,  the  last  three  books  being 
omitted  as  dealing  merely  with  the  public  law  of  the  Byzantine  Empire. 


142 


THE  SCIENCE  OF  JURISPRUDENCE 


New 

legislation 
and  its 
effects. 


Making  of 
the  Digest. 


those  reforming  the  law  of  intestate  succession,  are  of  the  very 
highest  importance.  When  we  add  Justinian's  contributions 
to  the  Code,  numbering  about  400,  to  his  surviving  Novels, 
numbering  about  170,1  we  have  of  his  own  legislation  about 
600  enactments.  In  these  it  is  possible  to  trace  the  comple- 
tion of  the  momentous  changes  made  in  the  law  of  the  family, 
in  the  law  of  property  and  obligation,  and  in  the  law  of  suc- 
cession during  the  time  of  the  Christian  emperors.  The 
church,  the  clergy,  the  monastic  orders,  and  other  matters 
pertaining  to  the  Christian  religion,  so  far  as  they  could  be 
drawn  within  the  jurisdiction  of  civil  law,  stand  out  promi- 
nently in  the  Code,  as  they  were  frequently  made  the  subjects 
of  legislation  by  Constantine  and  his  successors.  The  Code 
consists,  to  a  much  greater  extent  than  the  Digest,  of  public 
law,  including  criminal,  in  all  its  departments ;  that  is,  the  law 
which  regulates  all  state  institutions,  whether  civil  or  eccle- 
siastical. 

By  the  time  of  Justinian  the  jus  vetus,  or  jurist-made  law,  was 
understood  to  include  the  republican  statutes,  senatus  consulta, 
the  edicts  of  the  magistrates,  the  writings  of  the  jurists,  and  the 
collections  of  early  imperial  ordinances,  more  especially  of  re- 
scripts among  which  the  Gregorian  and  Hermogenian  codes  were 
preeminent.2  The  early  statutes  were  thus  considered  as  jus 
because  neither  the  tribunals  nor  the  parties  were  in  the  habit 
of  using  the  original  sources  of  law  in  their  original  forms. 
All  preferred  to  resort  to  the  classical  juristic  literature  where 
the  results  of  these  sources  were  fully  worked  out.  The  task 
of  reducing  that  unwieldy  mass  to  a  manageable  compass  was 
committed  by  Justinian  to  a  commission  of  sixteen,  four  law 

1  See  Biener,   Geschichte    der   Novellen    Justinians,   Berlin,    1824;    Schoell's 
edition  of  the  Novels,  completed  by  F.  Kroll  and  published  at  Berlin  in  1895. 
The  first  knowledge  the  West  obtained  of  the  Novels  was  derived  from  the  so- 
called  Epitome  Juliani,  being  a  collection  of  extracts  from  125  Novels  of  Justinian 
by  Julianus,  a  professor  of  law  in  Constantinople,  556  A.D. 

2  Cf .  Sohm,  Institutes,  pp.  82-86 ;    Bryce,  Studies  in  History  and  Jurispru- 
dence, p.  709,  note  1. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  143 

professors  and  eleven  members  of  the  bar,  who  were  selected  Commission 
by  and  organized  under  the  presidency  of  Tribonian,  Quaestor  Tnbonian^ 
of  the  Royal  Palace  and  the  author,  no  doubt,  of  the  constitu- 
tion, addressed  to  himself,1  in  which  were  laid  down  the  lines 
upon  which  the  collection  was  to  be  made.     The  commission  Divided 
was  divided  into  three  sections,  each  of  which  was  instructed  sections!* 
to  extract  a  particular  group  of  writings.     The  group  of  works 
dealing  with  the  jus  civile,  called  the  "Sabinian  group,"  be- 
cause the  staple  of  these  works  consisted  of  the  writings  of 
Sabinus  and  his  commentators,   was  assigned  to  the  first 
section.     The  group  of  works  dealing  with  the  praetorian 
edict,  called  the  edict-group,  was  assigned  to  the  second  sec- 
tion.    The  works  dealing  with  separate  legal  questions  and 
cases,  called  the  "Papinian  group,"   because  in  them  the 
writings  of  Papinian  and  his  commentators  transcended  all 
others  in  importance,  were  assigned  to  the  third  section,2  each 
section  extracting  the  works  allotted  to  it  so  far  as  they  bore 
on  each  particular  subject.    Each  law  or  fragment  is  an  excerpt  Each  law 
from  some  treatise  of  an  earlier  jurist  which,  in  compliance  from&nP 
with  Justinian's  instructions,   is  invariably  quoted  at  the  ? 
commencement.    The  considerable  number  of  books  3  thus 
drawn  upon  were  from  the  pens  of  thirty-nine  authors,  the 
earliest  being  Quintus  Mucius  Scaevola,  the  only  jurist  of  the 
Republic  from  whose  work  any  direct  extract  is  preserved.4  Principal 
The  largest  contributor  is  Ulpian,  who  furnished  about  one  tore" 
third  of  the  whole  Digest,  the  greater  part  being  from  his 
Commentary  on  the  Edict.    Paul,  who  supplied  about  one 
sixth  of  the  whole,  comes  next,  and  is  followed  in  the  order  of 

1  Const.,  "Deo  auctore"  (in  the  preface  to  the  Digest  and  again  in  Cod.  i. 
17,  1)  of  December  15,  530,  instructing  Tribonian  to  undertake  the  composi- 
tion of  the  Digest. 

3  Some  extracts  from  such  writings  as  had,  in  the  first  instance,  been  over- 
looked or  set  aside  were  subsequently  inserted  in  the  so-called  "Appendix- 
group."  Bluhme,  ZS.  fur  geschichtliche  RW.,  vol.  iv.  (1820),  pp.  257  ff. 

3  About  2000  books,  in  the  Roman  sense. 

*  Roby,  Introduction,  p.  cxxiii. 


144 


THE  SCIENCE  OF  JURISPRUDENCE 


No 

Christian 

elements. 


The 

"  Fifty 
Decisions. 


Authority 
of  the  com- 
missioners. 


their  importance,  so  far  as  the  bulk  of  their  contributions  is 
concerned,  by  Papinian,  Julian,  Pomponius,  Q.  Cervidius 
Scaevola,  Gaius,  and  Modestinus.1  As  that  mighty  line  of 
pagan  jurists  had  come  to  an  end  some  time  before  Chris- 
tianity ascended  the  imperial  throne,  it  is  not  strange  that 
the  Digest  is  silent  as  to  its  officers  and  institutions.  This 
human,  heathen  Digest  embodies  the  science  of  civil  life  as 
it  existed  at  Rome  before  the  social  fabric  was  affected  by 
Christian  influences.2  All  moot  points  in  the  law  which  could 
be  satisfactorily  settled  only  by  imperial  authority  were 
determined  as  the  work  progressed  by  a  series  of  imperial 
ordinances  of  Justinian  known  as  the  "Fifty  Decisions" 
(529-532).*  The  purpose  of  the  compilation  was  to  bring 
together  in  one  collection  the  decisions  of  the  leading  juris- 
consults, and  the  maxims,  rules,  and  illustrations  of  the  most 
eminent  text  writers,  and  to  arrange  them  according  to  the 
general  plan  adopted  by  Julian  in  the  consolidation  of  the 
edict.  While  the  commission  was  required,  on  the  one  hand, 
to  adhere  to  the  general  design,  by  inserting  at  the  head  of  each 
extract  the  name  of  its  author  and  the  particular  treatise  from 
which  it  was  taken,  it  had,  on  the  other,  a  very  large  discretion 
in  its  choice  of  materials  and  in  the  mode  of  dealing  with 
them.4  As  it  was  the  emperor's  purpose  to  publish,  not  a 
historical  view  of  the  law,  but  a  practical  code  containing  an 

1  Cf.  Hommel,  Palingenesia  libror.  juris  veterum  (3  vols.,  Leipzig,  1767) ; 
Lenel,  Palingenesia.  juris  civilis  (2  vols.,  Leipzig,  1888-1889). 

8  "Une  science  nouvelle  naquit,  inde'pendente  et  laique,  la  science  de  la 
soci6t4  civile,  telle  que  1'avaient  d6gag6e  les  Remains,  et  qui  pouvait  passer 
pour  le  chef-d'oeuvre  de  la  sagesse  humaine.  ...  II  en  r&sulta  qu'a  c6t£  du 
th6ologien  se  placa  le  16giste  qui  avait,  comme  lui,  ses  principes  et  ses  textes, 
et  qui  lui  disputa  la  direction  des  esprits  avides  de  savoir."  Esmein,  Cours 
d'histoire  du  droii  franqais  (ed.  2),  p.  347. 

*  "Nostras    constitutiones,    per    quas,    suggerente    nobis    Triboniano  .  .  . 
antiqui   juris  altercation  esplacavimus  "  (Just.   Inst.  1,  5,  3).      Cf.  Savigny, 
Gesch.  d.  r.  R.  ii.  452,  as  to  the  possible  existence  of  the  Quinquaginta  Deci- 
sioncs,  as  a  separate  collection,  prior  to  their  incorporation  into  the  second 
edition  of  the  Code. 

*  The  commissioners  were  expressly  exempted  from  the  rules   of   the  Law 
of  Citations,  which  declared  that  where  the  jurists  differed,  a  majority  of  voices 
should  decide  (i.  17). 


EXTERNAL  HISTORY  OF  ROMAN"  LAW  145 

authoritative  statement  of  it,  the  commissioners  were  em- 
powered to  remove  redundancies,  to  alter  expressions,  and 
even  to  interpolate  a  word  or  phrase  where  it  was  deemed  ex- 
pedient.1 The  outcome  was  a  work  in  fifty  books,  each  being 
subdivided  into  titles,  each  title  into  " fragments"  or  "leges."2 
The  arrangement  of  the  fifty  books  of  the  Digest  in  seven  parts 
is  thus  explained  by  Justinian  in  his  second  preface:  "We 
have  divided  this  work  into  seven  parts,  and  have  not  adopted 
this  division  by  chance  and  without  reason,  but  upon  consid- 
eration of  the  nature  and  mystery  of  those  numbers,  and  so 
making  an  arrangement  appropriate  to  them."3  The  Digest, 
or  Pandects  (Digesta,  Pandectae),  was  published  on  December  Digest,  or 
16,  533,  with  statutory  force  from  December  30  of  the  same  published 

vpar  4  December 

Vear'  16, 533. 

Before  the  completion  of  the  Digest  a  short  text-book  of 
Justinianian  law  known  as  the  Institutes,  primarily  intended  Text-book 
for  use  in  the  schools,  was  composed  by  Tribonian  and,  under  as  the 
his  supervision,  by  the  two  professors,  Theophilus  and  Doro- 
theus.5     In  the  early  Empire  the  teaching  of  the  law  was 
free.8    It  is  probable  that  state  recognition  of  law  teaching 
did  not  begin  before  the  time  of  Diocletian  when  it  was 
accorded  to  the  schools  of  Rome  and  Beirout.    Not  until  a 

1  This  is  the  explanation  of  the  so-called  "interpolations"  (emblemata 
Triboniani)  by  means  of  which  the  selections  from  the  classical  jurists  were 
brought  into  harmony  with  the  law  of  Justinian's  time.  Eisele,  Zur  Diagnostik 
der  Interpolationen  (ZS.  d.  Sav.  St.  vii.  15  ff.)  ;  Gradenwitz,  Interpolationen  in 
den  Pandekten  (ibid.,  pp.  45  ff.) ;  Gradenwitz,  Interpolationen  in  den  Pan- 
dekten,  1887. 

3  All  but  the  shortest  of  these  fragments  are  subdivided  into  paragraphs. 
As  to  the  various  methods  of  citation,  see  Roby,  Introduction,  ch.  18. 

3  Cf.  Eyssenhardt,  Justinians  Digesten  nach  Drittheilen,  Paries,  Biichem,  Ti- 
teln,  u.  Fragmenten  (Leipzig,  1845),  pp.  44  sq. ;  Roby,  Introduction,  pp.  xxix  sq. 
The  division  into  seven  parts  had  no  significance  except  in  regard  to  the  then 
existing  system  of  instruction. 

4  Const.   Tanta  =  const.    ktSuKtv.     See   Preface   to    the    Digest   and   Cod. 
i.  17.  2. 

•  Cf.  Huschke,  Preface  to  his  edition  of  the  Institutes,  1868,  pp.  vi  85. ;   Ed. 
Grupe,  De  Justiniani  Institutionum  compositione  (Argentorati),  1884. 

•  See   Heimbach,  Prolegomena   Basilicorum  (Leipzig,  1870),    bk.    1,    ch.    i., 
§§  1-6,  ch.  ii.,  §§  1,  2;   Karlowa,  Rdm.  RG.  i.  1022  sq. 


146 


THE  SCIENCE  OF  JURISPRUDENCE 


Founded 
on  Gaius. 


Law 
teaching 
confined  to 
Rome,  Con- 
stantinople, 
and 
Beirout. 


later  time  was  it  extended  to  those  of  Constantinople,  Alexan- 
dria, and  Caesarea.  Prior  to  Justinian's  reforms  the  course  of 
study  embraced  a  period  of  five  years,  the  last  two  being  given 
to  private  reading.  The  students  of  the  first  year  (dupondii) 
devoted  themselves  especially  to  two  books  of  Gaius's  Insti- 
tutes and  four  separate  books  of  his  (Ubri  singulares)  on 
dowries,  tutories,  testaments,  and  legacies.  It  is  not,  there- 
fore, strange  that  the  new  introductory  text-book *  for  the  law 
schools  should  have  been  founded  in  the  main,  by  the  em- 
peror's instructions,  upon  the  Institutes  of  Gaius  with  some 
extracts  from  the  elementary  works  of  Marcian,  Ulpian,  Floren- 
tine, and  other  classical  jurists.  The  compilers  were  in- 
structed to  expurge  everything  that  was  antiquated,  and  to 
introduce  whatever  in  their  judgment  was  necessary  to  make 
the  new  text-book  a  faithful  though  elementary  exposition  of 
Justinian  law.2  In  that  way  a  large  amount  of  new  matter 
was  inserted  displaying  the  amendments  of  the  later  emperors, 
among  which  special  prominence  was  given  in  a  boastful  and 
pedantic  form  to  the  legislation  of  Justinian  himself.  By  his 
command  the  right  to  teach  the  law  was  confined  to  the  schools 
of  Rome,  Constantinople,  and  Beirout,  all  others  being  sup- 
pressed. The  five  years'  course  of  instruction  was  continued, 
and  the  students  encouraged  to  diligence  by  the  promise  of 
position  and  promotion  in  the  public  employment  suited  to 
their  requirements.3  Justinian  published  the  Institutes  4  as  a 

1  A  Greek  paraphrase  usually  attributed  to  Theophilus,  one  of  Justinian's 
commissioners,  contains  much  more  historical  matter,  differently  rated  by 
different  critics,  than  the  Institutes.  See  Institutionum  Graeca  paraphrasis 
Theopilo  antecessori  vulgo  Tributa.  Ad  fid.  libror.  manuscriptor,  recensuit, 
E.  C.  Ferrini,  2  vols.,  Berlin,  1884,  1897. 

3  The  most  valuable  manuscripts  are  those  of  Bamberg  and  Turin.      There 
were  many  copies  of  the  Institutes,  and  they  were  more  widely  read,  even  in 
the  early  Middle  Ages,  than  the  more  voluminous  Digest. 

*  Justinian  thus  closes  his  direction  to  the  professors:  "Begin,  then,  to  in- 
struct, with  the  guidance  of  God,  your  scholars  in  the  science  of  the  law,  and 
guide  them  in  the  way  we  have  opened,  to  the  end  that  they  may  be  made 
worthy  ministers  of  justice  and  of  the  Republic." 

4  The  document  officially  promulgating  the  Institutes  was  Const.  Imperator- 
iam  (proem.  Inst.)  of  Nov.  21,  533  A.D. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  147 

part  of  his  work  with  the  same  statutory  force  as  the  remaining 
portions,  it  being  especially  declared  that  they  and  the  Digest 
and  the  Code  should  be  regarded  as  integral  parts  of  one  great 
piece  of  legislation  in  which  each  part  should  be  of  equal  Code, 
authority.     Everything  within  them  was  to  be  held  as  law;  institutes 


nothing  outside  them  was  to  be  looked  at,  even  the  volumes 

from  which  they  had  been  collected.    So  far  did  this  go  that 

after  the  publication  of  the  revised  Code,  neither  the  first 

edition  of  it  nor  the  Fifty  Decisions  were  allowed  to  be  referred 

to.     Outside  of  his  collection  the  emperor  remained  the  only  Emperor 

fountain  of  the  law;   if  a  case  arose  for  which  no  precedent  tain  of  law. 

could  be  found,  he  was  to  be  resorted  to  as  the  sole  and  only 

organ  of  interpretation.1 

From  the  nucleus  thus  established  by  Justinian  at  Con-  Constan- 
stantinople  the  concentrated  and  refined  light  of  Roman  law,  the°centrai 
softened  by  the  influence  of  Christianity  and  undimmed  by    g  t- 
the  admixture  of  barbaric  elements,  streamed  first  over  the 
Balkanic  and  Euxine  countries,  where  its  illuminating  power 
was  greatest,  between  the  tenth  and  fifteenth  centuries.    The 
three  that  followed  the  completion  of  Justinian's  work  were 
comparatively  barren  of  literary  fruit.2    Not  until  the  end  of 
the  ninth  did  the  emperor,  Basil  the  Macedonian,3  with  his 
son  Leo,  the  Philosopher,  undertake  the  production  of  an 
authoritative  Greek  version  of  the  whole  of  the  Justinian 
collections  and  legislation,  with  certain  important  omissions  The 
and  amendments,  the  outcome   of  which  was  the  Basilica, 

1  That  explains  the  necessity  for  new  constitutions  (novellae  constitutiones) 
issued  in  fairly  large  numbers  by  Justinian  himself  (535-565).  As  to  the 
general  history  of  Justinian's  codification,  see  Kriiger,  Quellen,  §§42—48  and 
§  53  sq. 

*  For  an  account  of  the  writers  who  continued  the  literary  work  throughout 
the  sixth  century,  see    Heimbach,  Prolegomena   Basilicarum    (Leipzig,   1870), 
loc.  tit. 

*  On  account  of   its   glaring  imperfections   and  departures    from  the  origi- 
nal,   Basil    repealed    the   'EicXo-yi)    TU>V  v6p.uv  tv  ffvvrbfuf  yevofi4yi)  of   Leo  the 
Isaurian,  put  forth  in  740  as  an  abstract  of  the  whole  Justinian  law  amended 
and  rearranged.     Published  in   Zachariae's  Collectio  librorum  juris  Graeco-Ro- 
mani  ineditorum,  Leipzig,  1852. 


148  THE  SCIENCE  OF  JURISPRUDENCE 

a  code  in  sixty  books,  probably  entitled  originally  The 
Revision  of  the  Ancient  Law  (T/  avaicaQapaus  r<ov  TraXatwi/ 
v6fjL(0v~)  and  finally  Imperial  Law  or  the  Imperial  Con- 
stitutions (o  y9aertXt/co?  or  ra  /SacrtXt/ca) .  The  Scholia  to 
the  Basilica,  which  have  done  good  exegetical  service  for 
modern  civilians,  are  additions  made  by  Leo's  son  in  the 
form  of  an  official  commentary  collected  from  the  writ- 
ings of  the  sixth-century  jurists.1  While  the  Basilica  re- 
tained their  statutory  authority  until  the  fall  of  the  Byzan- 
tine Empire  in  1453,  they  had  been  long  before  practically 
abandoned;  not  a  single  complete  copy  of  them  is  known  to 
Justinian's  exist.2  The  first  step  in  the  progress  of  Justinian's  works 
West,  554. e  toward  the  West  can  be  traced  in  his  pragmatic  sanction  pro 
petitione  Vigilii  3  of  the  year  554,  in  which,  after  giving  afresh 
his  imperial  sanction  to  the  Digest  and  Code  (jura  and  leges), 
he  says  that  long  before  he  had  transmitted  them  to  Italy, 
adding  at  the  same  time  that  his  Novels  were  to  be  of  the  same 
Julian's  authority  there  as  in  the  East.  Two  years  thereafter  Julian 
prepared,  possibly  by  command  of  the  emperor  himself,  his 
Latin  epitome  of  them;  and  there  is  good  reason  to  believe 
that  they  all  came  at  once  to  some  extent  into  use,  as  there  is 
preserved  in  Marini's  collectic^i  the  testament  of  one  Manna- 
nes,  executed  at  Ravenna  in  the  reign  of  Justinian's  immediate 
successor,  in  which  there  is  a  scrupulous  observance  of  the 
requirements  of  both  Code  and  Novels.4  Despite  the  barrier 
in  the  form  of  the  Lombard  invasions,  which  for  two  centu- 
ries stood  between  Italy  and  the  rest  of  Europe,  checking  the 

1  The  so-called  Hapdypa<pai  T&V  iraXcucDp. 

a  There  is  a  manuscript  in  the  Vatican  containing  an  abstract  of  the  Basilica 
called  Tipucitos.  A  second  supplement  to  Heimbach's  edition  of  the  Basilica 
(vol.  vii.),  by  Ferrini  and  Mercati,  with  Latin  translation,  has  been  recently 
published  (Leipzig,  1897).  As  to  the  fate  of  the  Justinian  books  in  the  East,  see 
Zachariae,  Historiae  juris  Graeco-Romani  delineatio,  Heidelberg,  1839 ;  Mortrueil, 
Histoire  du  Droit  byzantin,  3  vols.,  Paris,  1843-1846;  Amos,  History  of  the  Prin- 
ciples of  the  Civil  Law  (London,  1883),  pp.  392  aq. 

*  Kriiger,  Geschichte  der  Quetten  dea  rQmischen  Rechta,  p.  354;  Hodgkin, 
Italy  and  her  Invaders,  vi.  519. 

4  Muirhead,  Roman  Law,  p.  404. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  149 

advance  of  the  Justinian  law  northwards,  it  is  claimed  by 
some  to  have  been  taught  without  much  interruption  at  School  at 
Ravenna,  the  seat  of  the  exarchs,  to  which  it  is  said,  upon 
doubtful  authority,  that  the  school  (sludium)  of  Rome,  re- 
vived by  Justinian,  had  been  transferred.1  Not,  however, 
until  Charles  the  Great's  triumph  over  the  Lombards,  who 
allowed  Roman  law  to  be  applied  to  Romans  within  their 
territory,  was  an  outlet  made  for  it  beyond  Italy. 

Lombardy  was  the  country  in  which  the  principle  of  per- 
sonal law  struck  its  deepest  roots.  Besides  Lombards  and 
Romani  there  were  many  Franks  and  Swabians  who  trans- 
mitted their  law  from  father  to  son.  In  Pavia,  which  the 
Lombards  had  established  as  their  capital,  and  where  the 
"conflict  of  law"  seems  to  have  favored  the  growth  of  a 
mediating  and  instructed  jurisprudence,  a  law  school  arose  School 
in  the  first  half  of  the  eleventh  century.  In  it,  by  the  aid 
of  gloss  and  comment,  students  were  striving  to  systematize 
the  ancient  Lombard  statutes  of  Rothari  and  his  successors. 
The  Lombardists  knew  their  Institutes,  and  before  the 
eleventh  century  closed  the  doctrine  that  Roman  law  was  a 
subsidiary  common  law  for  all  mankind  (lex  omnium  generalis) 
was  gaining  ground  among  them.  Pavia  passed  the  torch  to 
Bologna,  Lombardy  to  the  Romagna.2 

While  there  is  evidence  to  show  that  as  early  as  the  ninth 
century  some,  at  least,  of  the  Justinian  law  books  were  already 
in  the  hands  of  the  clergy  in  various  parts  of  Europe,3  the 

1  See  La  Scuola  delle  leggi  romane  in  Ravenna,  by  V.  Rivolta,  Bologna,  1888 ; 
Fitting,  in  Z.  d.  Sav.  Stift.,  xvi.  49  sq. 

*  Boretius,  Preface  to  edition  of  Liber  legis  Langobardorum,  in  M.  G. ;   Brun- 
ner,  Deutsche  Rechtsgeschichte,  i.   387  ff.  ;    Ficker,   Forschungen  zur  Reichs--u. 
Rechtsgeschichte  Italiens,  iii.  44  ff.,  139   ff. ;    Pollock   and  Maitland,  History  of 
English. Law,  i.  21-22. 

*  As  to  what  was  known  of  the  ancient  Roman  texts  prior  to  the  eleventh 
century,  see  the  summing  up  for  English  readers  by  Rashdall,   Universities  of 
Europe,  i.  89  ff.     The  chief  advocate  of  a  maximum  of  knowledge  is  Dr.  H. 
Fitting  in  Juristische  Schriften  de»  fruheren  Mittelalters,  1876,  Die  Anfange  der 
Rechtsschule  zu  Bologna,   1888.     See  also  Conrat,  Gesch.  der  Quellen  und  Lit- 
teratur  des  rdm.  Rechts  im  fraheren  MittelaUer,  vol.  i.,  1889-1891 ;    Pescatore, 


150 


THE  SCIENCE  OF  JURISPRUDENCE 


School  at 
Bologna. 


Digest 
ignored 
by  clergy. 


Glossators. 


real  revival  did  not  begin  in  Italy  until  toward  the  end  of  the 
eleventh,1  the  principal  agent  then  being  the  school  of 
Bologna,  famous  for  many  generations  thereafter.  There 
under  Irnerius,  who  appears  not  to  have  been  a  professional 
jurist,  the  study  of  Roman  law  began  somewhat  suddenly 
to  attract  students  from  all  parts  of  Southern  Europe.  Down 
to  that  time  only  the  Institutes,  the  Code,  and  the  Novels, 
owing  no  doubt  to  their  abundant  legislation  on  matters 
ecclesiastical,  appear  to  have  appealed  to  the  clergy  by  whom 
the  Digest,  the  pure  product  of  pagan  jurists,  had  been  prac- 
tically ignored.  Its  mere  existence  seems  to  have  been 
almost  unknown  during  a  period  of  something  like  four  hun- 
dred years.  In  1076  the  Digest  was  cited  in  the  judgment 
of  a  Tuscan  court.2  Careful  research  has  apparently  failed 
to  prove  that  it  had  been  cited  between  603  and  that 
date.  That  the  text3  of  that  far  richer  storehouse,  with 
its  more  incisive  reasoning  and  purer  diction,  was  received 
in  installments  by  Irnerius  and  his  successors  of  the  Bologna 
school,  is  indicated  by  the  names  given  to  the  three  parts 
into  which  they  divided  it,  Digestum  Vetus  (bks.  1  to  24,  tit. 
2),  Infortiatum,  and  Digestum  Novum  (bks.  39  to  the  end), — 
the  suggestion  being  that  after  first  the  old  and  then  the  new 
Digest  had  come  to  light,  the  connecting  link  unexpectedly 
appeared.  Hence  the  somewhat  singular  name  by  which  it  has 

Die  Glossen  des  Irnerius,  1888;  Flach,  Etudes  critiques  sur  I'histoire  du  droit 
romain,  1890;  Besta,  L'Opera  d'Irnerio,  1896. 

1  In  1038  Conrad  II.  ordained  that  Roman  law  should  be  once  more  the 
territorial  law  of  the  city  of  Rome.  M.  G.  Leges  iii.  40 ;  Conrat,  loc.  cit.,  i.  62. 
The  University  of  Bologna  observed  1888  as  its  octocentenary. 

3  Ficker,  Forschungen,  iii.  126,  iv.  99. 

*  The  romantic  story  of  the  capture  of  an  unique  copy  of  the  Digest  of 
Justinian  at  Amalfi  in  1135  has  long  been  disproved.  It  has  been  preserved 
for  us  in  a  famous  and  most  excellent  manuscript  which  was  known  first  as 
the  Pisan  and  subsequently  as  the  Florentine  manuscript.  It  was  written  at 
the  beginning  of  the  seventh  century  by  Greek  scribes.  It  forms  the  basis 
of  the  numerous  manuscripts  which  contain  the  text  of  the  Digest  as  adopted 
by  the  glossators  or  teachers  of  Roman  law  at  Bologna  in  the  twelfth  and 
thirteenth  centuries. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  151 

been  since  known.     As  to  all  the  facts  concerning  the  MSS.  of 
the  Digest,  see  Mommsen's  great  edition  (Digesta  Justiniani 
Augusti,  2  vols.,  1870)  in  which  his  critical  researches  are  laid 
before  us.     The  collection  as  a  whole  was  distributed  into 
five  volumes  by  the  glossators,  as  the  members  of  the  Bologna 
school  were  called,  because  of  the  glossae,  notes  marginal  and 
interlinear,  with  which  they  enriched  them  from  the  rise  of 
the  school  with  Irnerius  until  its  close  with  Francesco  Accursi 
in  1260.1    Thus  it  was  that  Roman  law  entered  upon  its  new  New 
career  in  the  West,  radiating  from  Italy  over  the  lands  that 
lay  north  and  west  of  her  from  the  twelfth  to  the  sixteenth 
century.    Thereafter  Spain,  France,  Holland,  and  Germany 
became  the  chief  propagators  of  the  imperial  law,  all  through 
their  universities  and  jurists,  and  the  three  first  named  through 
the  instrumentality  of  colonization.2    And  here  the  fact  should 
be  emphasized  that  in  the  legal  history  of  nations  that  part 
of  the  law  which  has  the  greatest  importance  for  the  ordinary 
citizen,  the  private  civil  law  of  family  and  property,  of  con- 
tract and  tort,  is  the  part  least  affected  either  by  political 
change  or  by  direct  legislation.     Evolved,  as  it  is,  slowly  and 
almost  imperceptibly,  first  by  popular  custom,  then  by  the 
refining  hand  of  the  jurist  and  the  judgments  of  the  courts,  it 
grows  unaffected  by  direct  legislation,  except  when  the  su- 
preme power  is  forced  to  expurge  some  error  too  firmly  rooted 
for  judicial  remedy,  or  to  define  existing  usage  and  condense 
it  within  the  limits  of  a  code.     It  is  the  private  law  of  Rome  Only 
thus  developed,  and  based  on  principles  of  natural  equity  and 
universal  reason  which  have  not  lost  their  force  with  the  survlved 
altered   circumstances   and   advanced    civilization   of   more 
recent  times,  that  has  passed  on  to  the  modern  world.     It  is 

1  For  a  treatment  of  the  glossators  and  the  medieval  universities,  see  Savigny, 
Geschichte  des  Rdmischen  Rechts,  vol.  iii. ;  Conrat,  Gesch.  der  Quellen  und  Litteratur 
des  rom.  Rechts  im  fruheren  Mittelalter,  vol.  i.,  1889-1891 ;  Fitting,  Summa 
Codicis  and  Questiones  des  Irnerius,  2  (separate)  vols.,  1894. 

3  See  Bryce,  Studies  in  History  and  Jurisprudence,  p.  89,  "The  Extension  of 
Roman  Law  after  the  Fall  of  the  Western  Empire." 


152 


THE  SCIENCE  OF  JURISPRUDENCE 


Extension 
of  Roman 
law  to  the 
provinces. 


Rights  of 
cities, 
free  and 
tributary. 


mainly  by  reason  of  the  private  law  embodied  in  the  Corpus 
Juris,  of  which  the  Digest  contains  a  far  greater  proportion 
than  the  Code,  that  the  jurisprudence  of  Rome  has  been  able 
to  survive  the  city-state  that  evolved  it.  As  heretofore 
pointed  out,  the  state  system  of  modern  Europe,  in  which  the 
state  as  the  nation  is  the  sovereign  unit,  swept  away  and  super- 
seded the  ancient  state  system  in  which  the  city-common- 
wealth was  the  sovereign  unit.  That  change  made  necessary 
the  rejection  by  the  modern  European  states  of  the  public 
law  of  Rome,  constitutional  and  administrative,  because 
entirely  inapplicable  to  widely  dissimilar  conditions. 

15.  At  the  close  of  the  Republic  the  Roman  provinces 
numbered  fifteen,  including  Gallia  Narbonensis,  Gallia  Cisal- 
pina,  Hither  and  Further  Spain.1  The  idea  of  a  province  was 
that  of  an  aggregation  of  states  (civitates) ,  natural  political 
associations  whose  corporate  organization  varied  widely. 
Where  Greek  and  Phoenician  civilization  dominated  such 
states  were  cities,  but  sometimes,  as  in  Gaul  and  Spain, 
they  were  simply  cantons  and  tribes.  The  rights  of  the  cities 
that  were  only  "free"  (liberae)  rested  upon  charters  revocable 
at  any  time,  while  the  rights  of  those  liberae  et  foederatae 
rested  upon  sworn  treaties  (foedus),&  breach  of  which  was  either 
an  act  of  war  or  its  result.2  The  less  favored  states  which 
belonged  to  neither  of  these  classes  were  tributary  (stipen- 
diariae),  and  as  such  possessed  only  the  collective  guarantee 

1  The  remaining  provinces  were  Sicily,  Sardinia,  Illyricum,  Macedonia,  and 
Achaia  (separated  by  Caesar),  Africa,  Asia,  Bithynia,  Gyrene  with  Crete,  Cilicia, 
and  Syria. 

3  The  rights  of  the  one  were  guaranteed  by  a  revocable  charter  (lex  data), 
which  as  late  as  71  B.C.  was  still  an  utterance  of  the  people  (lex  rogata) ;  the 
rights  of  the  other  were  guaranteed  by  an  irrevocable  agreement  sworn  to  by 
the  fetiales.  The  rights  common  to  both  groups  of  states  generally  included 
the  control  of  their  own  finances,  a  free  enjoyment  of  their  land,  which  ex- 
empted them  from  the  payment  of  tribute,  and  above  all  a  use  and  enjoyment 
of  their  own  native  laws.  See  the  clause  in  the  lex  Antonia  de  Termesstbus,  71 
B.C.  (Bruns,  Fontes),  which  confers  autonomy  "so  far  as  is  consistent  with  thia 
charter  "  (i.  1.  7,  "eique  legibus  sueis  ita  utunto  .  .  .  quod  advorsus  hanc 
legem  non  fiat  ")• 


EXTERNAL  HISTORY  OF  ROMAN  LAW  153 

contained  in  the  law  of  the  province  (lex  provinciae),  usually 
the  work  of  the  conquering  general  himself,  assisted  by  ten 
senatorial  commissioners  (decem  legati)  appointed  by  the  sen- 
ate; and  it  continued  to  bear  the  name  of  its  chief  creator, 
as  in  the  cases  of  the  lex  Rupilia  in  Sicily,  the  lex  Aemilia  of 
Macedonia,  the  lex  Pompeia  of  Bithynia.1 

That  law  reestablished  the  states  of  a  conquered  district, 
it  gave  to  them  certain  ultimate  rights,  it  defined  the  burden 
of  the  tribute,  it  specified  the  particular  circuit  courts  which 
the  citizens  of  the  various  towns  were  to  attend,  and  it  pre- 
scribed regulations  which  the  governor  was  expected  to  observe 
as  to  national  and  international  jurisdiction.2  The  provinces  in  Provinces 
which  the  Romans  thus  assumed  to  maintain  order,  to  collect  kinds? 
revenue,  and  to  dispense  justice  were,  first,  those  organized  in 
such  civilized  countries  as  Sicily,  Achaia,  Macedonia,  and  the 
provinces  of  Western  Asia  Minor,  as  well  as  Africa,  where 
law  courts  already  existed  in  the  cities  with  summaries  or  codes 
of  existing  law;  second,  those  organized  in  such  backward 
communities  as  Thrace,  Transalpine  Gaul,  Britain,  and  Spain, 
where  there  existed  nothing  more  definite  than  tribal  usages 
suited  to  their  primitive  condition.  All  of  these  provinces  TWO  classes 
embodied  two  classes  of  inhabitants :  the  one  including  those 
who  enjoyed  Roman  citizenship,  either  by  birth  or  grant,8 
and  to  whom  pure  Roman  law  was  applicable,  subject,  of 
course,  to  any  local  customs ;  the  other  including  the  provin- 
cial subjects,  who,  in  the  view  of  Roman  law,  were  aliens  (pere- 
grini)  and  to  whom  Roman  law  was  primarily  inapplicable.4 

1  Cic.  In  Verr.  ii.  13.   32;    15.    37;    Liv.    xlv.    17,  32;    Plin.    Ad   Traj.   79 
(83).  1. 

2  See  Greenidge,  Roman  Public  Life,  pp.  245,  283,  317  sq. 

1  Mr.  Bryce  refers  to  the  natives  of  cities  on  which  (as  to  Tarsus  in  Cilicia,  St. 
Paul's  birthplace)  citizenship  had  been  conferred  as  a  boon ;  that  is,  the  citizen- 
ship which  carried  with  it  private  civil  rights,  including  Roman  family  and 
inheritance  law  and  Roman  contract  and  property  law,  such  rights  as  the 
Romans  call  connubium  and  commercium.  Studies  in  History  and  Jurispru- 
dence, p.  76  and  note  3. 

*  See  above,  p.  94. 


154 


THE  SCIENCE  OF  JURISPRUDENCE 


Provincial 
governor. 


His  court 
for  Roman 
citizens. 


Provincials 
lived  on 
under  their 
own  law. 


Importance 
of  the  edict. 


Civil 

jurisdiction 
based  on  it. 


Every  province  was  administered  by  a  governor  with  a  staff, 
whose  chief  members  were  one  subordinate  magistrate,  the 
quaestor,  and  certain  senatorial  commissioners  (legati),  one  of 
whom  was  usually  assigned  to  a  praetorian,  and  three  to  a  con- 
sular, province.  Just  as  the  consuls  at  Rome  originally  pos- 
sessed judicial  as  well  as  military  and  civil  powers,  and  just 
as  the  praetor  at  Rome,  though  usually  occupied  with  judicial 
work,  had  also  both  military  and  civil  authority,  so  the 
governor  was  the  head  of  the  judicial  as  well  as  the  military 
and  civil  administration.  His  court  was  the  proper  tribunal 
for  those  who  enjoyed  Roman  citizenship,  and  for  whom  no 
special  law  was  needed.  The  provincials  lived  on  under  their 
own  law,  whatever  it  might  be,  subject  to  such  modifications 
as  were  made  by  the  edict  issued  by  the  governor,  and  setting 
forth  the  rules  he  proposed  to  apply  during  his  term  of  office. 
As  the  attempt  to  substitute  her  own  for  the  native  law  was  at 
first  abhorrent  to  the  political  sense  of  Rome,  her  most  ambi- 
tious representatives  never  attempted  to  make  their  edicts 
into  codes.  The  importance  of  the  edict  was  chiefly  felt  in 
matters  of  international  private  law,  administrative  jurisdic- 
tion, and  procedure.  It  issued  rules  for  the  settlement  of 
claims  made  by  the  pvhlicani,  and  it  supplemented  the  law  of 
the  province  by  framing  regulations  for  the  conduct  of  private 
suits.  Although  the  unity  and  continuity  of  its  life  may  have 
depended  too  much  on  the  discretion  of  the  individual  gov- 
ernor, it  still  had  a  continuous  existence;  the  edict  of  each 
province  was  a  separate  entity  and  drew  its  name  from  the 
country  to  which  it  directly  applied.1  The  civil  jurisdiction 
of  the  governor  was  based  on  the  edict,  was  either  personal 
or  delegated,  and  in  both  cases  required  the  visitations  of 

1  E.g.  "  Edictum  Siciliense  "  (Cic.  In  Verr.  i.  45.  117).  The  edict  might 
be  composed  at  Rome,  and  its  author  might  copy  from  more  than  one  origi- 
nal. Cic.  Ad  Fam.  iii.  8.  4.  The  makers  of  edicts  could  not  hope  to  antici- 
pate everything.  Cicero  found  it  wiser  to  leave  the  third  part  of  his  edict 
"unwritten." 


EXTERNAL   HISTORY  OF  ROMAN  LAW  155 


circuits  (conventus,  Siot/c^o-et?),1  into  which  the  province  had 

been  divided  at  the  time  of  its  organization.    The  edict  seems 

to  have  contained  certain  legal  regulations  intended  to  indi- 

cate the  action  which  the  governor's  court  would  take  not 

only  in  disputes  between  Roman  citizens,  but  also  in  those 

between  citizens  and  aliens,  and  probably  also  to  some  extent 

in  those  between  aliens  themselves.     In  Sicily,  the  only  prov-  Lex  of 

ince  the  details  of  whose  lex  are  known,  it  was  ordained  that 

in  a  suit  between  two  citizens  of  the  same  state,  the  trial  should 

be  held  in  that  state  and  according  to  its  laws,  —  a  regulation 

which  certainly  guaranteed  the  native  judex  and  the  native 

code,  but  which  did  not,  perhaps,  inhibit  an  appeal  to  the 

governor  or  take  away  his  right  of  interpreting  the  law.     If  a 

Sicilian  of  one  state  sues  a  Sicilian  of  another,  the  governor 

is  to  provide  the  judex  or  judices  by  lot.2    In  the  more  civilized 

provinces  the  local  city  courts,  in  cities  municipally  organized,  wide  scope 

doubtless  continued  to  administer  their  local  civil  law;   and  city^ourts. 

in  the  so-called  free  cities,  which  had  come  into  the  Empire 

as  allies,  these  local  courts  had  for  a  long  time  a  wide  scope  for 

their  action.    Where  the  provisions  of  the  edict  did  not  apply, 

aliens  would,  of  course,  be  governed  by  their  own  law.    While 

the  governor  possessed  unfettered  criminal  jurisdiction  over  Governor's 

members  of  the  stipendiary  states,  it  is  not  probable  that  he  jurisdiction. 

often  exercised  it.     He  might  summon  any  case  into  his  court, 

but  ordinary  crimes  he  doubtless  left  to  the  judicial  machinery 

of  the  states  themselves.3    Cases  of  a  grave  political  character, 

such  as  those  connected  with  sedition  or  a  popular  uprising, 

1  Cic.  Ad  Fam.  iii.  8.  6.      The  governor  held  a  court  in  each  circuit  in  turn, 
according  to  a  programme  of  the  assize  determined  beforehand.    Cic.  Ad  Att.  v. 
20.  1  ;  Ad  Fam.  iii.  8.  4  and  5. 

2  "Siculi  hoc  jure  sunt  ut  quod  civis  cum  cive  agat,  domi  certet  suis  legibus; 
quod  Siculus  cum  Siculo  non  ejusdem  civitatis  [agat],  ut  de  eo  praetor  judices 
ex  P.  Rupilii  decreto  .  .  .  sortiatur."     Cic.  In  Verr.  ii.  13.  32. 

*  "Possibly  certain  kinds  of  criminal  jurisdiction  were  guaranteed  to  cities 
by  the  lex  provinciae.  The  senate  of  Catina,  in  Sicily,  tried  a  slave  (Cic.  In 
Verr.  iv.  45.  100)."  Roman  Public  Life,  p.  327,  note  8.  See  also  pp.  318,  321, 
325  sq. 


156 


THE  SCIENCE  OF  JURISPRUDENCE 


Athenian 


the  governor  generally  sent  to  Rome  for  trial.1  Although 
over  Roman  citizens  in  the  provinces  he  possessed  an  auto- 
cratic power  in  a  military  sphere  to  which  the  provocatio 
did  not  extend,  in  obedience  to  a  custom  seldom  disobeyed, 
he  remitted  to  Rome  for  trial  all  capital  charges  against  them. 
In  St.  Paul's  time,  however,  the  Athenian  Areopagus  would 
seem  to  have  retained  its  jurisdiction,2  as  the  Romans  treated 
Athens  with  special  consideration.  When  the  governor  did 
pronounce  a  criminal  judgment  against  a  Roman  citizen,  it 
seemed  to  be  understood  that  he  should  inflict  no  degrading 
punishment.8  It  thus  appears  that  the  governor's  court  was  a 
tribunal  for  the  graver  criminal  proceedings,  and  for  the  hear- 
ing of  cases  between  Roman  citizens,  between  such  citizens 
and  aliens,  and  in  some  instances  of  suits  between  aliens,  as, 
for  instance,  between  aliens  belonging  to  different  cities.  The 
rule,  doubtless,  was  for  the  governor  to  disturb  provincial 
usage  as  little  as  possible.  Popularity  was  not  to  be  won  either 
by  introducing  Roman  law  or  by  bringing  about  artificial 
uniformity.*  And  yet  the  natural  tendency  was  toward  a 
gradual  assimilation  of  Roman  and  provincial  law  as  the 
number  of  Roman  citizens  increased,  as  the  provincial  adminis- 
aPf  provm"  tration,  with  its  regular  body  of  bureaucratic  officials  estab- 
lished by  the  monarchy,  became  better  organized,  as  the 
jurisdiction  of  the  governor's  court,  supplemented  in  the 
course  of  time  by  lower  courts  administering  law  according  to 
the  same  rules,  extended  itself,  and  as  the  law  applied  to  dis- 
putes arising  between  citizens  and  non-citizens  became  more 
copious  and  definite.  So  far  as  direct  legislation  was  con- 

1  Cic.  In  Verr.  i.  33.  84  (of  an  tmeute  at  Lampsacus). 

3  Ct.  Acts  xvii.  19. 

1  Cic.  In  Verr.  v.  66.  170.  For  the  threat  of  capital  punishment  on  a 
Roman  citizen,  see  Cic.  Ad  Q.,  fr.  i.  2.  5  ;  for  its  apparent  execution,  Diod.  xxxvii. 
5,2. 

4  A  disregard  of  all  kinds  of  law  was  one  of  the  charges  against  Verres. 
Cicero  says  that,   under  him,   the  Sicilians   "neque  suas  leges  neque  nostra 
senatus  consulta  neque  communia  jura  tenuerunt."    In  Verr.  i.  4.  13. 


Gradual 


EXTERNAL  HISTORY  OF  ROMAN  LAW  157 

cerned,  there  was  no  need  for  it  in  the  domain  of  private  law,  Direct 
first,  because  any  alteration  made  in  Roman  law  proper  j^,1*1 
altered   it   for  Roman   citizens   dwelling   in   the   provinces ;  Pnvate  law- 
second,  because  the  edict  of  the  governor  and  the  rules  which 
the  practice  of  the  courts  established  were  sufficient  to  intro- 
duce any  needed  change,  so  far  as  provincial  aliens  were 
concerned.     There  was,  however,  in  the  domain  of  public  AS  to 
law  an  unparalleled  amount  of  legislation  intended  for  the  * 
protection  of  provincials  in  enactments  dealing  with  the  order- 
ing of  the  provinces,  the  rights  of  magistrates,  and  with  extor- 
tion (de  provindis  ordinandis,  de  jure  magistratuum,  repetur^- 
darum).i    And  here  the  fact  should  be  emphasized  that  while 
the  unification  of  Roman  and  provincial  law  was  thus  progress- 
ing, Roman  law  itself  was  being  transformed,  as  heretofore 
explained,  from  an  archaic  and  highly  technical  system  of 
rigid  rules  into  a  body  at  once  equitable  and  elastic,  through 
the  infusion  of  new  principles  drawn  from  the  jus  gentium  in  Effect  at 
order  to  make  the  jus  civile  applicable  at  Rome  to  controver- 
sies  between  Romans  and  aliens.     Thus  while  the  provinces 
were  being  Romanized,  they  were  drawing  from  the  ruling 
city  its  enlarged  and  improved  system  of  law  in  a  form  which 
made  it  specially  adaptable  to  their  local  conditions.     In 
point  of  time  the  two  processes  substantially  synchronize 
with  each  other.     While  at  the  end  of  the  period  indicated 
dissimilarities  in  the  law  of   the  family  relations  and  inheri- 
tances were  still  significant,  the  law  of  property  and  contract, 
with  some  few  exceptions,2  of  penal  law  and  legal  procedure, 
was  practically  identical.     Such  was  the  outcome  of  the 

1  The  nearest  approach  to  provincial  self-government  was  represented  by  the 
provincial  councils  which  seem  to  have  existed  in  all,  or  nearly  all,  of  the 
provinces  from  the  time  of  Augustus  down  to  the  fifth  century.  They  con- 
sisted of  delegates  from  the  cities  of  each  province  who  met  annually  in  some 
central  place.  As  to  their  lack  of  real  power  and  importance,  see  Marquardt, 
Rdmische  Staatsverwaltung,  vol.  i.,  and  an  article  in  English,  Historical  Review  for 
April,  1893,  by  E.  G.  Hardy. 

*  "  Such  as  the  technical  peculiarities  of  the  Roman  stipulatio  and  the  Greek 
syngraphe."  Bryce,  Studies  in  History  and  Jurisprudence,  p.  83,  note  1. 


158  THE  SCIENCE  OF  JURISPRUDENCE 

Outcome       process    of    assimilation  —  accelerated,    no   doubt,   by  the 
processor     copious  flow  of  direct  imperial  legislation  intended  for  citi- 


zens  and  aliens  alike,  and  by  the  judicial  action  of  the  emperor 
in  matters  brought  before  him  as  supreme  judge  of  appeals 
from  inferior  tribunals  —  prior  to  the  elimination  of  all  dis- 
tinction between  citizens  and  aliens  by  the  famous  edict  of 
Caracalla  granting  full  citizenship  to  all  free  inhabitants  of 
the  Empire.  Despite  the  lack  of  clear  and  definite  infor- 
mation as  to  this  enactment,1  which  must  have  been  made 
between  the  years  212  and  217,  2  it  may  be  safely  assumed  that 
it  finally  did  away  with  the  necessity  for  the  jus  gentium  as  a 
separate  positive  system,  and  that,  by  conferring  citizenship 
on  all  or  nearly  all  3  provincial  peregrins,  it  subjected  them  in 
all  their  relations  to  the  law  of  Rome,  and  qualified  them  for 
taking  part  in  many  transactions,  both  inter  vivos  and  mortis 
But  one  law  causa,  which  previously  had  been  incompetent  for  them.  The 
cX  toara"  Empire  had  but  one  law  from  the  time  of  Caracalla  (211-217 
Theodosius.  A  D  )  down  to  the  death  of  Theodosius  the  Great  (395  A.D.). 

1  Justinian  (Nov.    78,  c.    5)    incorrectly  attributes    it    to    Antoninus    Pius. 
Gaius,  who  is  the  best  authority  for  the  middle  period  of  the  law,  lived  fifty  or 
sixty  years  earlier;    the  compilers  of  Justinian's  Digest  lived  three  hundred 
years  later.     The  annals  of  the  epoch  are  lamentably  scanty. 

2  Dio  Cass.  Ixxvii.  9  ;  Ulp.  in  Dig.  i.  5,   17.     It  cannot    be  doubted    that 
its  primary  purpose  was  purely  fiscal.     The  tax  of  five  per  cent  imposed  by 
Augustus  on  inheritances  and  bequests  above  a  certain  amount,  except  where 
the  heir  or  legatee  was  a  near  kinsman  of  the  deceased  (it  did  not  apply  to  succes- 
sions ab  intestate),  and  continued  with  profit  by  his  successors,  affected  only 
the  successions  of  Roman  citizens,  —  it  did  not  affect  the  great  mass  of  the 
provincial  population.     In  order  to  increase  his  revenue  Caracalla  not  only  in- 
creased the  tax  temporarily  to  ten  per  cent,  but  widened  its  operation  by 
elevating  all  his  free  subjects  to  the  rank  of  citizens.     The  very  inclusive  words 
of  Ulpian,  as  to  which  there  is  much  controversy,  are  :  "In  urbe  Romano  qui 
sunt  .  .  .  cives  Romani  effect!  sunt."     As  to  the  general   nature  and  effect 
of  the  edict,  see  Gibbon,  Decline  and  Fall,   i.   185,   193  sq.  ;  Guizot,  History 
of  Representative  Government,  pp.  181  sq.  ;   Maine,  Ancient  Law,  p.   139;   Sohm, 
Institutes,  pp.  81,  117,  119;  Muirhead,  Roman  Law,  pp.  318  sq.     As  to  the  non- 
application  of  the  law  of  Augustus  to  successions  ab  intestate,  see  Puchta, 
Cursus,  §  313  ;    Paul,  Sent.  iv.  6  ;    Girard,  Droit  romain,  p.  818. 

*  Sohm  says,  "The  only  peregrini  left  were  the  peregrini  dediticii,  i.e.  aliens 
whose  community  had  been  destroyed  and  who  had  therefore  no  place  which 
they  could  claim  as  their  home  and  where  they  were  entitled  to  reside." 
—  Institutes,  p.  117. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  159 

And  yet  there  is  good  reason  to  believe  that  the  preexisting 
law  of  different  provinces  or  districts  was  not  completely 
superseded  by  the  one  stroke  involved  in  Caracalla's  exten- 
sion of  citizenship.  It  appears  that  many  difficulties  arose 
that  had  to  be  removed  by  further  and  not  always  consistent 
legislation.  In  the  East  it  is  clear  that  some  Roman  prin-  Exceptions 
ciples  and  maxims  were  never  fully  understood  by  the  mass 


of  the  people,  while  others  never  succeeded  in  displacing 
altogether  the  local  rules  to  which  they  were  most  attached. 
Dr.  Mitteis  has  demonstrated  that  both  in  Syria  and  Egypt 
the  old  native  customs,  remolded  by  Greek  law,  held  their 
own  even  down  to  the  sixth  or  seventh  century.1 

16.  During  the  reign  of  Augustus  the  work  of  consolidating  Roman 
Roman  dominion  in  Spain  was  completed  ;  from  the  north  to  S 
the  south  the  country  was  fairly  conquered;  the  people  had 
accepted  the  Latin  tongue  and  Latin  civilization.  For  the 
next  four  centuries  Spain,  while  in  the  enjoyment  of  the 
Roman  peace,  had  no  military  history.  Under  the  Empire 
the  province  was  divided  for  purposes  of  administration  into 
fourteen  provincial  assemblies  (conventus)  made  up  of  a  union 
of  so  many  communities  or  townships,  including  the  colonia 
originating  in  a  camp  granted  to  old  soldiers,  the  town  whose 
inhabitants  had  been  made  Roman  citizens  in  the  fullest 
sense,  the  town  that  had  the  inferior  franchise  (jus  Latii)? 
the  "free"  town  which  might  at  any  time  have  its  freedom 
taken  from  it,  and  the  "tributary"  town.  Upon  the  pro- 
vincial substructure  thus  constituted  classical  jurisprudence  classical 
was  superimposed.  The  law  of  Spain  was  the  law  of  Julian, 
Gaius,  Papinian,  Ulpian,  and  Paul,  as  applied  and  extended 
by  imperial  decrees  and  constitutions,  and  as  modified  by  the 

1  See  his  Reichsrecht  und  Volksrecht  in  den  dstlichen  Provinzen  des  Rdmischen 
Kaiserreichs,  ch.  vi. 

2  Vespasian  conferred  the  jus  Latii  upon  the  whole  of  Spain.     As  to  the  two 
forms  of  the  jus  Latii,  cf.  Gaius,  I.  96  ;  O.  Hirschfeld,  Zur  Geschichte  des  lati- 
nischen  Rechts  (Festschrift  fur  d.  archaolog.  Institut  in  Horn,  Vienna,  1879). 


160  THE  SCIENCE  OF  JURISPRUDENCE 

local  situation.     Such  were  the  conditions  existing,   as  to 
government  and  law,  at  the  time  of  the  founding  of  the  Visi- 
gothic  kingdom  in  Spain  which  lasted  from  418  to  711,  when 
it  gave  way  before  the  Saracen  invasion.    After  the  con- 
quest of  the  peninsula  the  Gothic   King  Euric  (466-485) 
"Customs     caused  the  "customs  of  the  Goths"  to  be  reduced  to  writing 
Goths."        and  embodied  in  a  code  l  whose  comparatively  recent  discov- 
ery has  deprived  the  Lex  Salica  of  its  claim  to  be  the  oldest 
extant  statement  of  Germanic  customs.2    This  famous  monu- 
ment of  German  tribe  law,  made  for  the  government  of  the 
Goths  themselves,  was  followed  by  the  making  in  506  of 
Breviarium    the  Breviarium  by  King  Alaric  II.,  for  the  government  of  his 
see.          '  Roman-born  subjects,  an  account  of  which  has  been  given 
heretofore.8    The  Breviarium  was  in  force  in  Spain  during 
the  two  centuries  preceding  the  definite  formation  of  the 
Fuero          Fuero  Juzgo,  or  until  the  promulgation  of  the  notable  law 
687^700.       which  prohibited  the  use  of  other  than  Gothic  laws.4     That 
code,  whose  title  is  probably  a  corruption  of  Fori  Juditium? 
was  not  definitely  compiled  until  the  sixteenth  council  of 
Toledo  (687-700)  ,6  a  type  of  national  assembly,  with  eccle- 
siastical elements,  closely  analogous  to  the  Old-English  wite- 
nagemote.     Designed  to  bring  about  a  unity  in  the  laws, 

1  Published  perhaps  between  470  and  475.  Zeumer,  Leges  Visigothorum 
Antiquores,  1894;  Brunner,  Deutsche  Rechtsgeschichte,  i.  320,  1887;  Schroder, 
Lehrbuch  der  deutschen  Rechtsgeschichte,  p.  230,  2d  ed.,  1894. 

*  Cf.  Brunner,  I.e.  i.  292  ff . ;  Esmein,  Cours  d'histoire  du  droitfranqais,  pp.  102  ff. ; 
Dahn,  Die  Konige  de  Germanen,  vii.  (2)  60  ff. ;  Hessols  and  Kern,  Lex  Salica, 
the  ten  texts,  1880. 

1  See  above,  p.  138. 

*  8a,  tit.  1,  bk.  2  of  the  Fuero  Juzgo.     Prior  to  that  time  there  were  in  force 
two  bodies  of  laws  springing  from  different  sources  and  having  different  charac- 
teristics, the  Gothic  code  of  Euric  and  the  Roman  code  of  Alaric.     For  a  clear 
and  concise  statement  as  to  the  contents  of  each,  see  Walton,  Civil  Law  in  Spain 
and  Spanish  America,  pp.  31-58. 

*  Or  rather  Fuero  Juzgo  is  a  contraction  of  Fuero  de  los  Jueces,  which  in  turn 
is  a  modification  of  the  words  forum  judicium.     It  might  be  translated  as  a 
code  or  guide  for  the  judges. 

*  During  the  reign  of  Egica.     See  view  of  Mariana,  Ensayo  historico-critico 
sabre  la  antiqua  Legislacion  y  principales  Cuerpos    Legales  de   los    Reynos  de 
Leon  y  CastUla,  i.  41. 


cemc  inva- 


EXTERNAL  HISTORY  OF  ROMAN  LAW  161 

rendered  so  necessary  by  the  union  of  the  two  peoples,  it  was 
enacted  for  all  Spaniards  in  'an  assembly  overshadowed  by 
the  power  of  the  clergy,  and  therefore  naturally  bearing  a 
distinctively  Roman  and  ecclesiastical  impress.    To  the  su- 
premacy then  secured  to  the  king  and  the  clergy  were  due,  no 
doubt,  the  extraordinary  powers  afterward  wielded  by  the 
Inquisition.     On  the  other  hand,  the  fact  should  be  remem- 
bered that  the  laws  which  the  code  contained,  often  combin- 
ing the  wisdom  of  old  Rome  with  the  kindly  spirit  of  Chris- 
tianity, recognized  the  equality  of  all  men  in  the  eye  of  the 
law,  and  rejected  such  barbarisms  as  the  assessment  of  a 
man's  value  according  to  his  rank  and  position,  judicial  com- 
bat, and  trial  by  ordeal.1    While  by  the  progress  of  the  Sara- 
cenic invasion  the  influence  of  the  Fuero  Juzgo  was  greatly  Depressed 
diminished,  it  was  not  entirely  extinguished  ;  it  lived  on  in  the 
Asturias,  and  later  it  reigned  as  the  only  law  in  Leon,  Navarre,  bv  ? 
and  Castile  until  changed  conditions,  and  the  necessity  for 
the  granting  of  rewards  in  the  struggle  made  imperative  the 
concession  of  special  privileges  or  fueros2  within  the  districts 
reconquered  by  the  Christian  host.     During  the  period  begin- 
ning with  712  3  and  ending  with  1348  the  legislation  of  Spain 
is  known  as  local  or  foral,  because  of  its  special  or  local  charac- 
ter.   The  work  of  unification  began  with  Alfonso  X.,  the  Wise,  Work  of 
king  of  Castile  and  Leon,  who,  after  raising  the  University  v 
of  Salamanca  to  the  rank  of  the  great  schools  of  Paris  and 
Oxford,   published,   probably   in   1263,   the  Siete  Partidas,4  siete 
one  of  the  legislative  monuments  of  an  age  that  produced  the     a 
Etablissements  of  St.  Louis  and  the  great  statutes  of   Ed- 

1  As  to  West  Gothic  laws,  see  Guizot,  History  of  Civilization,  Lect.    3,   6, 
10,  11. 

*  As  to  the  five  different  meanings  attributed  to  the  wordfttero,  not  including 
the  processal  use  of  the  word,  see  Mariana,  I.e.  bk.  4,  no.  1. 

*  The  battle  of  Guadalete,  which  marks  the  overthrow  of  the  Goths  and  the 
beginning  of  Moslem  dominion,  occurred  in  July,  711. 

*  The  work  was  begun  in  1256,  and  it  was  probably  published  in  1263.     The 
official  name  Partidas  was  not  officially  given  it  until  1347  by  Alfonso  XI. 


162  THE  SCIENCE  OF  JURISPRUDENCE 

ward  I.  Although  drawn  up  under  Alfonso  X.  it  did  not  finally 
Approved  supersede  the  ancient  fueros  until  1348,  when  it  was  formally 
approved  by  the  Cortes  in  the  Ordenamiento  of  Alcald.1  By 
this,  the  most  scientific  work  published  on  law  up  to  that 
time,  its  materials  being  largely  drawn  from  Roman  sources 
a  stamp  of  unity  was  impressed  upon  the  monarchy,  while  the 
municipal  codes  were  stifled,  and  the  spirit  of  localism  and 
feudal  anarch}^  that  had  dominated  the  legislation  and  customs 
of  Castile  greatly  depressed.  The  Partidas  are  still  worthy  of 
study  because  fundamental  in  the  law  of  Spain  and  her 
colonies.2  Prior  to  the  compilation  of  the  Sieie  Partidas 
and  preparatory  thereto,  Alfonso  X.  promulgated  in  1255  the 

Fuero  Real,    Fuero  Real,3  &  treatise  that  may  be  said  to  bear  the  same 
1255. 

relation  to  the  legal  system  of  Spain  at  that  time  that  the 

Institutes  of  Justinian  bore  to  his  Digest,  its  composition 
being  the  outcome,  no  doubt,  of  the  general  revival  of  legal 
studies  and  of  the  works  of  Justinian  which  had  extended 
from  Bologna  to  Spain,  France,  and  England.  While  that 
revival  was  opening  a  magazine  of  new  ideas  and  principles 
to  jurists  and  statesmen,  the  revival  of  commerce  was  pro- 
ducing codes  of  maritime  law,  first  among  which  was  the 
Consoiato  famous  Consoiato  del  Mare,  probably  compiled  not  later  than 
the  fourteenth  century  by  order  of  the  magistrates  of  Barce- 
lona, the  chief  seat  of  the  maritime  tribunals  of  Catalonia.4 
In  it  is  contained  the  earliest  collection  of  the  laws  and  cus- 

1  See  Law  I.,  tit.  28,  of  the  Ordenamiento  Real  de  Alcald,  reproduced  in  Law 
I.  of  Toro,  and  to  be  found  also  in  Nueva  and  Novisima  Recopilacidn. 

2  It  is  divided  into  seven  parts,  as  its  name  implies,  possibly  in  imitation 
of  the  seven  parts  of  the  Digest  of  Justinian.     It  was  known  originally  as  Libra 
de  las  Leyes  or  Fuero  de  las  Leyes. 

*  There  is  an  edition  by  Montalvo,  1500,  another  by  the  Academy  of  History 
of  Madrid,  1836.     It  is  divided  into  four  books,  comprising  seventy-two  titles 
and  five  hundred  and  forty-five  laws. 

*  Probably  called  Consoiato  because  it  embodied  the  rules  according  to  which 
the  judge-consuls  established  in  the  maritime  cities  of  Spain  determined  the 
controversies  brought  before  them.     Cf.  Twiss,  The  Law  of  Nations,  i.,  §  206. 
See  also  Pardessus,  Lois  Maritimes,  iv.  256;  v.  108,  116  sq.     The  first  edition 
was  published  in  the  Catalonial  dialect  at  Barcelona  in  1494 ;  the  best  is  that 
of  Pardessus. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  163 

toms  of  the  sea  in  time  of  war.1  Passing  over  the  Orde- 
namiento  Real,  a  collection  made  by  the  jurist  Montalvo 
during  the  reign  of  Ferdinand  and  Isabella,  and  the  Leyes  de 
Toro  formed  in  the  Cortes  of  Toledo  (1502),  in  order  to  correct 
defects  and  supply  omissions  in  existing  legislation,  it  is  neces- 
sary to  notice  next  La  Nueva  Recopilaci&n,  sanctioned  by 
Philip  II.,  in  1567,  and  comprising  all  laws,  not  considered 
abrogated,  published  since  the  Fuero  Real  and  Partidas*  In 
order  to  remedy  the  deficiencies  of  a  work  which  rather  in- 
creased than  diminished  obscurities  in  legislation,  Charles  IV. 
charged  Juan  de  la  Reguera  Valdelomar  with  the  task  of 
making  a  new  and  complete  codification  which  appeared  in 
1802,  as  La  Novisima  Recopilacion,  its  legal  force  dating  from  La  Novts- 
the  royal  decree  of  July  15,  1805.  Not  until  after  a  long  in- 
terval  was  that  hasty  and  confusing  attempt 3  to  remedy  the  1805' 
failings  of  its  immediate  predecessor  followed  by  the  admirable 
codifications  now  in  force.  Their  final  adoption  was  hindered 
and  delayed  by  the  fact  that  the  populations  of  the  various 
provinces  tenaciously  guarded,  sometimes  with  arms  in  their 
hands,4  the  many  and  local  fueros,  charters,  and  customs 
which  no  such  thing  as  the  French  Revolution  and  consulate 
had  ever  enabled  Spain  to  sweep  away.  Only  after  the  mak- 
ing of  large  reservations  in  favor  of  such  local  rights  and 
customs  did  the  determined  movement  begun  in  1850  to  Codes  of 

1870 

revise  and  codify  the  laws  culminate  in  the  Criminal  Code  of  1882] 
1870,  the  Code  of  Civil  Procedure  of  1881,  the  Code  of  Crimi-  1889' 1893 
nal  Procedure  of   1882,  the  Commercial  Code  of   1885,  the 

1  The  Venus,  8  Cranch  (U.S.)  253 ;  2  Azuni,  II.,  ch.  III.,  Art.  1. 

2  The  ancient  codes  of  Spain  were  published  in  full   in  two  volumes,  by 
Marcello  Martinez  Alcubilla  in  1885,  at  Madrid. 

*  See  the  criticism  of  Marina  in  his  Juicio  critico  de  la  Novisima  Recopilacion. 

*  While  minister  plenipotentiary  of  the  United  States  to  Spain,  the  author 
was  once  besieged  in  the  hotel  at  San  Sebastian,  which  happened  for  the 
moment   to  have  as  its  guest  the   Prime  Minister  Sagasta,  who  visited  the 
summer  capital  for  the   purpose  of   obtaining   the  queen's   assent   to   a    law 
taking  away  certain  local  and  immemorial  rights  as  to  taxation.     There  was 
some  loss  of  life  before  the  mob  was  dispersed. 


164 


THE  SCIENCE  OF  JURISPRUDENCE 


Spain 

transmitted 
Roman  law 
to  the 
Americas. 


Starting 
point  Siete 
Partidas. 


Council  of 
the  Indies. 


Partidas  in 
Louisiana. 


Civil  Code  of  1889,  and  the  Hypothecary  Code  of  1893.  The 
Code  of  Civil  Procedure  represents  the  Roman  practice  under 
the  later  Empire,  while  the  Civil  Code,  which  follows  the  divi- 
sions suggested  by  Gaius  as  to  persons,  things,  and  actions, 
resembles  in  its  general  plan  the  Code  Napoleon  as  well  as  the 
civil  codes  of  Lower  Canada,  Louisiana,  and  Mexico.  Mr. 
Alonzo  Martinez,  one  of  the  most  distinguished  of  Spanish 
jurists,  is  understood  to  have  been  one  of  its  compilers,  and  so 
admirably  was  the  task  performed  that  Mr.  Leve",  a  French 
judge,  writing  in  1890,  declared  it  to  be  even  more  scientific 
than  the  Code  Napoleon.  Spain  transmitted  Roman  private 
law  to  Mexico,  Central  America,  South  America,  Cuba,  Porto 
Rico,  and  the  Philippines  unfettered,  of  course,  by  the  local 
fueros,  charters,  and  customs  which  had  been  developing  in 
the  peninsula  for  centuries.  The  general  statement  may  be 
made  that  to  these  possessions  passed  during  the  colonial 
period  the  Spanish  law  of  the  sixteenth,  seventeenth,  and 
eighteenth  centuries  so  far  as  it  was  applicable  to  colonial  con- 
ditions.1 The  starting  point  was  the  Siete  Partidas,  which 
became  fundamental  in  the  colonies  as  in  the  mother  country, 
and  upon  that  general  basis  law  was  administered  subject  to 
such  local  regulations  and  decrees  as  were  promulgated  by  the 
Council  of  the  Indies,  created  by  Ferdinand  in  1511,  but  not 
fully  organized  until  the  reign  of  Charles  V.  in  1524,  whose 
supreme  jurisdiction  over  all  colonies,  and  over  all  ordinances 
of  governors  and  viceroys,  included  even  the  power  to  frame 
laws.2  When  France  ceded  the  colony  of  Louisiana  to  Spain 
in  1763,  the  Partidas  was  introduced  and  became  really  a  large 

1  Cf.  Howe,  Studies  in  tl&  Civil  Law,  pp.  143-149. 

2  The  two  great  authorities  on  the  history  of  the  laws  of  the  Indies  are  Bar- 
tolome  de  las  Casas,  philosopher  and  missionary,  and  Pereira  Solorzano,  who 
was  a  judge  in  the  Indies,  and  a  member  of  the  Council  of  the  Indies.     Its  enact- 
ments were  digested  and  published  in  1661  in  the  Recopilacidn  de  las  leyes  de 
las  Indias,  the  only  authentic  collection  of  the  ordinances  and  decrees  govern- 
ing Spanish  America  prior  to  1680.     Subsequent  editions  were  printed  in  1756, 
1774,  1791,  and  1841. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  165 

part  of  the  fundamental  law  of  that  vast  domain,  some  of  its 
provisions  surviving  as  a  part  of  the  law  of  the  state  of 
Louisiana.1 

Before  Spain  was  deprived  of  her  dominion  in  Cuba,  Porto  Roman  law 
Rico,  and  the  Philippines  those  islands  had  received  the  bene- 


fits  of  her  most  recent  codifications  which  still  survive  as  the  £,?*?,  .the. 

Philippines. 

basis  of  existing  law.  Cuba  was  provided  with  a  Criminal 
Code  in  1879,  with  a  Code  of  Civil  Procedure  in  1885,  with 
a  Commercial  Code  in  1886,  with  a  Civil  Code  and  with  a  Code 
of  Criminal  Procedure  in  1889,  and  with  a  Mortgage  Law  in 
1893.  At  substantially  the  same  times  codes,  with  identical 
titles,  were  provided  for  Porto  Rico  and  the  Philippines. 
In  that  form  Roman  law  existed  in  these  islands  when  they 
became  subject,  by  virtue  of  the  treaty  of  Paris  of  December 
10,  1898,  to  the  military  occupation  of  the  United  States,  by 
whose  authority  these  codes  were  soon  republished  with  Eng- 
lish translations.  The  authority  of  preexisting  law,  during 
such  a  military  occupation,  has  been  thus  defined  by  the 
Supreme  Court  of  the  United  States  :  "  It  is  a  general  rule  of  civil 
public  law,  recognized  and  acted  upon  by  the  United  States, 
that  whenever  political  jurisdiction  and  legislative  power  over 
any  territory  are  transmitted  from  one  nation  or  sovereign  to 
another,  the  municipal  laws  of  the  country,  that  is,  laws  which 
are  intended  for  the  protection  of  private  rights,  continue  in 
force  until  abrogated  or  changed  by  the  new  government  or 
sovereign.  By  the  cession  public  property  passes  from  one 
government  to  the  other,  but  private  property  remains  as 
before,  and  with  it  those  municipal  laws  which  are  designed 
to  secure  its  peaceful  use  and  enjoyment.  As  a  matter  of 
course,  all  laws,  ordinances,  and  regulations  in  conflict  with 

1  They  are  referred  to  in  the  earlier  decisions  of  her  Supreme  Court.  See 
Beard  v.  Poydras,  4  Martin  348.  Portions  of  the  Partidaa  were  translated  into 
French  for  the  benefit  of  the  inhabitants.  A  translation  of  the  principal  por- 
tions of  the  work  into  English  was  published  in  1820  by  Moreau-Lislet  and 
Carleton. 


166  THE  SCIENCE  OF  JURISPRUDENCE 

the  political  character,  institutions,  and  constitution  of  the 
new  government  are  at  once  displaced.  Thus,  upon  a  cession 
of  political  jurisdiction  and  legislative  power —  and  the  latter 
is  involved  in  the  former  —  to  the  United  States,  the  laws  of 
the  country  in  support  of  an  established  religion,  or  abridging 
the  freedom  of  the  press,  or  authorizing  cruel  and  unusual  pun- 
ishments, and  the  like,  would  at  once  cease  to  be  of  obligatory 
force  without  any  declaration  to  that  effect ;  and  the  laws  of 
the  country  on  other  subjects  would  necessarily  be  superseded 
by  existing  laws  of  the  new  government  upon  the  same  mat- 
ters. But  with  respect  to  other  laws  affecting  possession, 
use,  and  transfer  of  property,  and  designed  to  secure  good  order 
and  peace  in  the  community,  and  promote  its  health  and  pros- 
perity, which  are  strictly  of  a  municipal  character,  the  rule  is 
general  that  a  change  of  government  leaves  them  in  force  until, 
by  direct  action  of  the  new  government,  they  are  altered  or 
repealed." l  A  great  opportunity  was  thus  given  to  the  War 
Department  of  the  United  States  to  define  the  powers,  func- 
tions, and  duties  of  military  governments  under  such  circum- 
stances. The  scientific  part  of  that  duty  devolved,  in  the 
main,  upon  an  eminent  and  clear-visioned  jurist 2  who  has 
formulated  his  response,  to  questions  submitted  to  him  by  the 
Secretary  of  War,  as  they  might  have  been  submitted  by  the 
praetor  to  a  Roman  jurisconsult,  in  a  volume  which  is  a 
valuable  contribution  to  that  branch  of  public  law. 
Roman  17.  Despite  the  fact  that  in  Gaul  the  Teutonic  invaders 

made  their  deepest  impression,  the  fabric  of  the  older  society 
survived ;  it  remained  Roman  and  Christian ;  it  did  not  become 
heathen  and  Teutonic.  The  Latin  tongue  survived;  French 

1  Chicago,  R.  J.  &  P.  Ry.  Co.  v.  McGlinn,  114  U.S.  542,  546.  See  also  Am. 
Ins.  Co.  v.  Canter,  1  Pet.  42 ;  Halleck,  International  Law,  vol.  ii.  (Baker  ed), 
pp.  434  sq. ;  Taylor,  International  Public  Law,  ch.  ix.,  "Military  Occupation  and 
Administration. " 

a  Reference  is  made  to  Hon.  Charles  E.  Magoon,  whose  volume  is  entitled 
The  Law  of  Civil  Government  under  Military  Occupation  (1902). 


EXTERNAL  HISTORY  OF  ROMAN  LAW  167 

is  nothing  but  Latin  with  a  deep  infusion  of  Teutonic  words.1 
As  in  Spain  the  Roman  law  of  the  early  Empire,  a  body  of  pre- 
existing law  made  elsewhere,  became  too  firmly  set  to  be  up- 
rooted by  the  Teutonic  assault.2    The  law  of  the  Empire  was  Law  of  the 
largely  modified,  however,  by  the  "  barbarian  laws,"  as  the  Teu-  modified  by 


tonic  customary  laws  were  called,  —  laws  in  which  the  primi- 

tive  ideas  of  family,  clan,  status,  torts,  and  penalties  play  an  legislation. 

important  part.    And  to  the  influence  of  these  customary 

laws  may  be  added  the  material  modifications  made  by  legis- 

lative power  through  laws   (Capitularies)   issued,  with  the 

assent,  express  or  implied,  of  popular  assemblies,  by  the  kings 

of  the  "  first  and  second  race,"  from  the  sixth  to  the  tenth  cen- 

tury;  or  through  ordinances  of  the  "third  race  of  kings,"8 

from  the  latter  part  of  the  tenth  century  down  to  the  French 

Revolution.     From  the  reign  of  Louis  XI.,  who  crushed  the 

older    feudalism    and    substituted    autocracy   for    anarchy, 

down  to  the  time  of  Louis  XVI.  a  notable  series  of  enlightened  Ordinances 

ordinances,  resembling  in  a  way  the  constitutions  of  a  Roman  xLto  Louis 

emperor,  were  published,  relating  to  procedure,  to  officials,  XVL 

to  registry  of  legal  documents,  to  foreign  judgments,  to  crimi- 

nal law,  and  to  commerce.4    But  these  did  not  affect  local  cus- 

toms ;  or  if  so,  only  to  a  trivial  extent.     The  southern  portion 

of  the  country,  which  had  fallen  under  the  influence  of  the 

written  Roman  codes  of  the  early  part  of  the  sixth  century  pays  du 

heretofore  described,  was  known  as  the  country  of  the  written 


law  (pays  du  droit  6crii),  while  the  northern,  when  it  had  droit,cou- 

tumier. 

ceased  to  be  Gaul  and  had  become  France,  was  known  as  the 

1  Freeman,  Norman  Conquest,  i.  11. 

a  "In  Gaul,  even  in  the  parts  most  settled  by  the  Franks,  the  law  of  the  Em- 
pire held  its  ground,  though  everywhere  largely  modified  by  feudal  land  usages." 
Bryce,  Studies  in  History  and  Jurisprudence,  p.  776. 

1  As  to  the  ending  of  the  capitularies  and  the  beginning  of  the  ordonnances, 
see  above,  p.  136. 

4  A  notable  example  is  that  model  of  marine  legislation  known  as  the  Or- 
donnance  de  la  Marine  of  Louis  XIV.,  published  in  1681,  and  expounded  less 
than  a  century  later  by  Valin.  The  Commentaire  sur  I'Ordonnance  de  la  Marine 
was  published  in  1760  ;  the  Traite  des  Prises,  in  1763. 


168 


THE  SCIENCE  OF  JURISPRUDENCE 


360  groups 
of  custom- 
ary law. 


Custom 
of  Paris. 


Problem 
confronting 
French 
jurists. 


Work  of  the 
glossators. 


Glossa  of 
Accursius  a 
continuous 
commen- 
tary. 


country  of  the  customary  law  (pays  du  droit  coutumier), — a  law 
drawn  in  the  main  from  local  grants  and  charters,  and  from 
feudal  land  usages,  differently  applied  in  different  provinces.1 
It  has  been  estimated  that  in  the  tenth  century  there  were  360 
kinds  or  groups  of  customary  laws,  including  an  equal  number 
of  lines  of  descent.  Sometimes  a  custom  prevailed  throughout 
the  whole  of  a  province ;  at  others  it  was  confined  to  a  town, 
or  city,  or  to  some  small  locality.  When,  in  the  trial  of  a  cause 
in  the  provinces,  no  controlling  rule  could  be  found,  resource 
was  had  to  the  more  -conspicuous  Custom  of  Paris,  that  city, 
the  center  of  civilization  and  learning,  being  distinguished  for 
its  revival  of  the  study  of  the  Roman  law,  especially  in  the 
twelfth  and  thirteenth  centuries.  When  that  revival  began, 
French  jurists  were  called  upon  to  deal  with  Roman  law  as 
modified  by  a  bewildering  variety  of  Teutonic  customs,  and 
not  with  a  body  of  law  truly  national,  in  the  sense  either  of 
having  a  distinctive  national  quality  or  of  embracing  the 
whole  nation  or  of  having  been  enacted  by  a  national  legis- 
lature, —  the  French  states-general,  even  before  their  long 
eclipse,  never  having  been  an  effective  legislature. 

An  account  has  been  given  heretofore  of  the  work  of  the 
glossators  through  whose  labors  the  contents  of  the  Corpus 
Juris  Civilis  were  made  accessible  and  intelligible  to  the 
Western  world.  Their  notes  or  glossae,  originally  designed  to 
explain  an  occasional  difficulty  in  words  or  expression,  finally 
expanded  into  a  full  and  continuous  commentary  on  the  Digest, 
Code,  Institutes,  and  Novels.  In  order  to  lessen  the  incon- 
venience to  the  student  resulting  from  the  number  of  the  com- 
mentaries or  glossae  thus  produced,  Accursius,  about  the 
middle  of  the  thirteenth  century,  worked  them  into  a  single 
glossa,  usually  referred  to  as  the  Glossa  simply.  The  obvious 

1  "In  the  pays  du  droit  coutumier  province  differed  from  province,  county  from 
county,  municipality  from  municipality,  in  the  nature  of  its  customs.  In  the 
pays  du  droit  tcrit  the  stratum  of  feudal  rules  which  overlay  the  Roman  law 
was  of  the  most  miscellaneous  composition."  Maine,  Ancient  Law,  p.  80. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  169 

tendency  of  this  analytical  method,  which  exhausted  its  pro- 

ductive power  in  the  summing  up  of  Accursius,  was  to  split 

up  legal  knowledge  into  innumerable  fragments,  through  a  set 

of  dialectical  operations  in  which  the  actual  text  of  the  Corpus 

Juris  was  obscured  if  not  entirely  superseded  by  a  body  of 

more  or  less  authoritative  commentary  upon  it.     Instead  of  the 

text,  what  such  jurists  considered  and  discussed  were  inter- 

pretations of  it,  —  interpretations  which  often  became  subtle 

and  violent  when  it  became  necessary  to  adapt  a  system  of  law 

then  centuries  old  to  widely  different  conditions.     In  the  form 

thus  given  to  it  by  the  commentators  Roman  law  became  a  Roman  law 

branch  of  academical  teaching  on  the  founding  of  the  famous  ^  tcademi- 

universities  established  on  the  continent  during  the  fourteenth  Pal  te&ch~ 

mg. 

and  fifteenth  centuries.  The  opinions  expressed  in  the  glossa 
and  those  of  the  post-glossators  or  commentators,  particularly 
those  of  Bartolus,  came  more  and  more  to  be  placed  on  a  level 
with  the  text  itself,  until  it  may  be  said  that  even  down  to  the 
sixteenth  century  the  jurisprudence  of  the  later  centuries  of 
the  Middle  Ages  was  based,  in  its  essentials,  on  the  glossa 


and  the  writings  of  Bartolus.1    The  honor  of  securing  the 
original  text  of  Roman  law  through  the  abolition  of  this  mos 
Italicus  —  which  ignored  everything  like  historical  criticism  MOS 
in  its  interpretations  of  separate  passages  of  the  Corpus  Juris    to 
considered  as  if  it  were  a  code  of  existing  law  —  belongs  largely 
to  the  Frenchman  Pierre  de  la  Ramee  (1515-1571),  with  whose  Pierre  de 
name  is  associated  the  movement  on  the  part  of  those  jurists 
who  undertook  to  trace  the  ideas  and  principles  connecting  its 
various  provisions  with  each  other,  and  to  combine  them  into 
one  rational  whole.     In  France  this  philosophical  movement 
centered  in  the  university  of  Bourges,  where  the  new  synthet- 
ical method  was  first  employed  in  that  kind  of  academical 

Mos 

instruction  out  of  whose  success  grew  the  mos  Gallicus,  as 

1  See  the  excellent  Introductory  Essay,  by  Dr.  Erwin  Grueber  to  Ledlie's 
translation  of  Sohm's  Institutes  from  the  4th  edition  of  the  German. 


170 


THE  SCIENCE  OF  JURISPRUDENCE 


Cuiacius 
and 


Donellua. 


The 

"  French 

School." 


Triumph 
of  the 
synthetical 
method. 

Code 
Napole'on. 


opposed  to  the  mos  Italicus,  or  method  of  the  commentators, 
until  then  exclusively  used.  At  Bourges  it  was  that  Jacobus 
Cuiacius  (1522-1590)  developed  that  phase  of  the  new  method 
which  aimed  at  a  thorough  understanding  of  the  particular 
provision  of  Roman  law  regarded  as  a  portion  of  antiquarian 
research,  side  by  side  with  Hugo  Donellus  (1527-1591),  who 
set  for  himself  the  synthetical  task  of  understanding  law  as  an 
organic  whole,  comprehending  and  regulating  human  life  in 
its  entirety.  The  conclusion  of  his  life  work  in  that  direction  is 
embodied  in  his  Commentarii  Juris  Civilis,1  which  contains  a 
complete  system  of  Roman  private  law  carefully  worked  out  in 
its  consequences.  It  thus  appears  that  the  new  expounders, 
usually  known  as  the  "  French  School,"  2  because  its  most  dis- 
tinguished representatives  were  of  that  country,  essayed  the 
double  task  of  making  the  study  of  Roman  law  a  branch  of 
antiquarian  research  through  an  examination  of  the  sources 
themselves,  with  the  aid  of  the  necessary  historical  and  philo- 
logical knowledge,  and  of  extracting  from  the  data  thus  ob- 
tained the  connected  ideas  and  principles  of  a  great  systematic 
and  historical  whole  as  it  appears  to  an  understanding  untram- 
meled  by  scholastic  restrictions.  Through  the  efforts  of  the 
great  French  jurists  the  synthetical  method  gained  universal 
recognition,  and  by  the  end  of  the  sixteenth  century  it  was  pre- 
dominant both  in  literature  and  academical  teaching. 

With  the  foregoing  epitome  of  the  history  of  legal  develop- 
ment in  France  clearly  in  view,  it  will  be  easier  to  understand 
the  real  nature  of  the  marvelous  work  of  codification  made 
possible  by  that  abrupt  and  profound  break  with  the  past 
known  as  the  French  Revolution.  The  necessity  for  such  a 
work  grew  out  of  such  a  terrible  complication  of  laws  as  had 
never  existed  in  any  other  country,  a  condition  prompting 

1  See  Stintzing,  Geschichte  der  deutschen  Rechtswissenschraft,  i.  378  sq. 

2  As  opposed  to  the  earlier  and  later  Italian  schools,  i.e.  those  of  the  glossa- 
tors  and  commentators. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  171 

Voltaire's  declaration  that  a  traveler  in  France  changed  horses 
not  oftener  than  he  changed  laws.  The  effort  to  work  a  refor- 
mation through  the  creation  of  a  uniform  code  began  in  the 
Constituent  Assembly  with  dreamers  of  the  Rousseau  school, 
who  claimed  that  it  should  be  "as  simple  as  nature,"  so  plain  Rousseau's 
that  any  adult  person  could  understand  it  without  any  ex-  ofacode 
trinsic  aid.1  Even  Cambaceres,  chairman  of  the  committee  J^ure.*" 
on  codification,  who  devoted  himself  exclusively  to  the  work, 
admitted  that  it  was  entirely  possible  to  simplify  the  laws  upon 
an  Utopian  basis.  The  outcome  of  the  first  attempt  was  a  Outcome 
code  reported  in  August,  1793,  as  "  the  fruit  of  liberty, " —  really  attempt, 
nothing  more  than  a  collection  of  moral  maxims,  in  fact  no 
code  at  all.  But  as  even  that  was  considered  by  the  Conven- 
tion too  complex,  it  was  sent  back  for  simplification.  Prac- 
tical work  then  began  in  earnest,  and  after  the  passing  of 
Robespierre  the  committee  made  progress  toward  a  useful 
compilation  of  the  laws,  a  task  taken  over  by  the  Council  of 
Five  Hundred  and  passed  on  unfinished  to  the  languid  gov- 
ernment of  the  Directory.  Such  was  the  condition  of  things 
when  Napoleon  came  upon  the  stage  in  1799,  fully  conscious 
of  the  prestige  to  be  drawn  from  the  completion  of  a  great 
work  so  long  delayed.  On  August  12,  1800,  the  First  Consul  commission 
appointed  a  commission  headed  by  Tronchet,  and  including 
Portalis,  Maleville,  and  Bigot  de  Pre"ameneux,  to  review  the 
work  of  codification,  so  far  as  it  had  advanced,  and  to  im- 
prove on  it  as  much  as  possible.  The  draft  of  the  code  was 
finished  in  four  months,  an  expeditious  result  only  made  pos- 
sible by  the  previously  accumulated  materials  and  devoted 
labors  of  the  committees  directed  by  Cambaceres,  who  was 
not  placed  on  the  Code  Commission,  because  as  Second  Consul 
it  was  his  duty  to  preside  over  the  Council  of  State,  whenever 
the  First  Consul  might  be  absent.  In  that  body  each  section 

1  Barere  wished  to  disperse  that  "  flock  of  judicial  ravens,  the  secret  enemies 
of  the  Revolution,  by  destroying  their  nests." 


172 


Napoleon's 

personal 

agency. 


Published 
in  1804. 


Elements 
that  entered 
into  it. 


"Code 

Napoleon," 

1807. 


of  the  draft  code  was  examined  critically  during  a  hundred 
and  two  sessions,  over  fifty-seven  of  which  Napoleon  presided 
in  person,  taking  part  in  the  debates.  From  Thibaudeau,  who 
was  present,  we  learn  that  "  he  regulated  and  directed  the  dis- 
cussion, guided  and  animated  the  debate."  After  a  decision 
was  reached  as  to  a  particular  section  by  vote,  it  was  printed 
and  copies  distributed  to  all  the  members.  Copies  were  sent 
to  the  judges  of  the  Court  of  Cassation  and  to  those  of  the 
various  Courts  of  Appeal ;  and  these  tribunals  made  their  re- 
ports to  the  Council  of  State.  Copies  were  also  sent  to  the 
Tribunate,  where  every  article  was  discussed  and  returned  to 
the  Council  of  State  as  adopted,  rejected,  or  amended.  The 
entire  work,  completed  in  about  four  years,  was  adopted  by 
the  legislature  and  published  in  1804,  with  all  the  reports  and 
discussions,  in  the  Tribunate  and  Council  of  State,  showing  the 
original  draft  and  all  changes  made  in  it.  Thus,  out  of  a 
prolonged  and  critical  process  finally  emerged  the  most  famous 
modern  code  of  substantive  law  consisting  of  2281  sections, 
arranged  under  titles  and  divided  into  three  books,  preceded 
by  a  preliminary  title.  It  was  the  final  product  of  the  fusion 
of  customary  laws,  wholly  excluding  all  feudal  laws  and  cus- 
toms, of  royal  ordinances  and  laws  of  the  Revolution,  and  of 
the  vital  principles  of  Roman  private  law  expressed  with  the 
greatest  possible  clearness  and  brevity.  And  here  the  fact 
should  be  emphasized  that  wherever  this  code  has  been  re- 
produced the  purely  French  element  has  tended  to  disappear, 
—  it  is  the  element  drawn  from  the  private  law  of  Rome  that 
has  been  and  is  triumphant.  Not  until  1807  was  the  code, 
known  at  first  simply  as  the  French  code,  called  by  legislative 
authority  the  "Code  Napoleon."  Under  that  title  it  has  en- 
circled the  earth  as  one  of  the  vital  forces  of  modern  civiliza- 
tion, asserting  as  such  a  greater  influence  than  any  similar 
work  since  the  days  of  Justinian.  While  it  has  suffered 
important  changes  both  in  form  and  substance,  it  still  remains 


EXTERNAL  HISTORY  OF  ROMAN  LAW  173 

virtually  the  same  in  principle  as  it  left  the  hands  of  its  framers. 
In  1904  the  bench  and  bar  of  France  celebrated  the  centennial  Centennial 
anniversary  of  its  adoption  with  ceremonies  whose  literary 
fruits  have  been  gathered  in  two  ponderous  volumes  made  up 
of  papers  prepared  by  representatives  of  the  many  countries 
that  have  adopted  it.1  Napoleon  made  no  mistake  when  he 
prophesied  that  he  would  go  down  to  a  very  late  posterity 
"with  his  code  in  his  hand." 

The  revised  text  of  the  Custom  of  Paris  of  1580,  naturally  Extension 
far  more   important   and   authoritative   than .  the   Custom  \^^nch 
of  Orleans,  the  Custom  of  Normandy,  or  the  Custom  of  Brit-  America- 
anny,  was  used  even  in  the  preparation  of  the  Code  Napoleon. 
It  is  not  therefore  strange,  when  in  the  seventeenth  century 
France  was  called  upon  to  provide  laws  for  her  colonies  in  the 
New  World,  that  it  should  have  been  ordained  that  the  general 
laws,  ordinances,  and  edicts  of  the  realm,  and  the  Custom  custom 
of  Paris  should  be  extended  to  such  colonies.     In  that  way  ofPans- 
that  body  of  law  was  replanted  in  Canada,  or  New  France,  and 
as  the  French  explorers  made  their  way  to  Detroit,  Mackinac, 
and  the  Upper  Mississippi  they  took  this  system  with  them. 
In  theory  at  least,  the  Custom  of  Paris  was  in  force  in  Michi-  once  in 
gan  and  in  Wisconsin,  a  part  of  that  territory,  down  to  1810, 
when  the  legislature  of  Michigan,  after  declaring  in  substance 
that  it  did  not  know  what  the  Custom  of  Paris  was,  abolished 
it.2    When  the  English  conquest  of  Canada  was  completed 
and  the  entire  territory  transferred  to  Great  Britain  by  the 
treaty  of  1763,  the  grave  question  arose  as  to  the  body  of  law 
which  should  dominate  within  a  region  inhabited  by  French 
people  who  had  lived  for  about  a  century  and  a  half  under  the 

1  See  Le  code  civil,  1804—1904  ;  Livre  du  centennaire.  Public1  par  la 
soci6t6  d'etudes  legislatives.  A.  Rousseau,  Paris,  1904.  And  also  the  excel- 
lent article  suggested  by  the  event  entitled  "  The  Code  Napoleon  "  in  American 
Law  Review,  November  and  December,  1906,  by  U.  M.  Rose. 

1  Lorman  v.  Benson,  8  Mich.  18,  25 ;  Coburn  v.  Harvey,  18  Wis.  156,  158 ; 
Howe,  Studies  in  the  Civil  Law,  pp.  134  sq. 


174 


THE  SCIENCE  OF  JURISPRUDENCE 


Compro- 
mise after 
Canada 
became 
English. 


Legal 
history  of 
Louisiana. 


Territorial 
statutes 
of  1805. 


Rules  of  in- 
terpreta- 
tion. 


system  originally  planted,  a  system  partly  Roman  and  partly 
medieval.  The  conclusion  reached  was  at  once  wise  and 
typical  of  others  that  were  to  follow  it  under  like  circumstances. 
English  law  was  introduced  in  criminal  matters,1  private  law 
in  civil  matters  being  left  undisturbed.  Thus  in  the  Province 
of  Quebec,  or  Lower  Canada,  Roman  private  law,  as  it  was  in- 
troduced in  the  seventeenth  century,  survived ;  and,  in  1866, 
a  civil  code,  following  the  general  theory  of  the  French  code, 
was  promulgated,  which  is  said  to  be  an  excellent  specimen  of 
juristic  work.  In  that  portion  of  the  country  lying  farther 
west,  and  settled  by  English  emigrants,  English  law  naturally 
became  the  basis  of  the  social  fabric.  The  legal  history  of  the 
Province  of  Quebec  was  repeated  in  that  of  Louisiana,  created 
a  dependency  of  New  France,  or  Canada,  in  the  charter  granted 
in  1712  to  the  French  merchant  Crozat 2  which  expressly  pro- 
vided that  the  laws,  edicts,  and  ordinances  of  the  realm,  and 
the  Custom  of  Paris  should  be  extended  to  Louisiana.  While 
that  system  absorbed  no  doubt  some  elements  from  the  kin- 
dred Spanish  system,  during  the  period  of  Spanish  domination 
(1763-1803), 3  Roman  private  law,  as  introduced  through  the 
charter  of  Crozat,  survived  as  the  basis  of  private  right  in  the 
territory  of  Orleans,  created  by  Congress  in  1804,  with  boun- 
daries substantially  the  same  as  those  of  the  present  state 
of  Louisiana.  By  two  territorial  statutes  enacted  in  1805, 
still  in  force  in  principle,  it  was  provided  that  the  English  com- 
mon law  should  be  the  basis  in  criminal  cases;  and,  in  1808, 
the  territorial  legislature  in  Orleans  adopted  a  civil  code,  based 
to  a  considerable  extent  on  the  Code  Napoleon.  It  is  well 
understood  that  when  a  code  requires  interpretation,  resort 
must  be  had,  first,  to  the  decisions  of  the  Louisiana  courts ; 

1  By  the  statutes  of  14  Geo.  III.,  c.  83. 

3  Crozat,  then  Marquis  de  Chatel,  had  leased  the  country  for  fifteen  years. 
See  Hamilton,  Colonial  Mobile,  p.  77  (1898). 

3  See  Martin,  History  of  Louisiana.  (2d  ed.,  p.  211),  as  to  the  time  when  it 
is  believed  that  the  laws  of  Spain  became  the  sole  guide  of  the  tribunals  in  their 
decisions. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  175 

second,  to  the  principles  of  Roman  private  law,  so  far  as  they 
are  applicable  to  existing  conditions. 

18.   When  by  the  Peace  of  Westphalia  a  crowd  of  petty  Roman 
principalities    were    recognized    as    practically    independent  {^GermMiy 
states,  what  had  been  known  as  the  Romano-Germanic  Em- 
pire really  ceased  to  be  such.     It  became  only  a  Confederation 
and  that  of  the  loosest  sort.     Its  princes,  emancipated  from 
imperial  control,  had  become  despots  in  their  own  territories; 
its  states,  of  different  religions,  were  governed  according  to 
different  forms,  and  administered  judicially  and  financially 
without  regard  to  each  other.     Germany  had  been  forced  to 
drink  the  cup  of  feudalism  to  the  dregs,  and  the  outcome, 
as  it  appeared  something  more  than  a  century  ago,  was 
300  petty  principalities  between  the  Alps  and  the  Baltic,  soo  petty 
each  with  its  own  laws,  its  own  court,  its  separate  coinage,  tl™clpa 
its  tolls  and  customhouses  on  the  frontier.     And  so  against 
Voltaire's  statement  that  a  traveler  in  France  in  his  time 
changed  horses  not  oftener  than  he  changed  laws,  may  be  set 
Bryce's  statement1  that  "The  traveler  in  central  Germany 
used,  up  till  1866,  to  be  amused  to  find,  every  hour  or  two,  by 
the  change  in  the  soldiers'  uniforms,  and  in  the  color  of  the 
stripes  on  the  railway  fences,  that  he  had  passed  out  of  one  and 
into  another  of  its  miniature  kingdoms."     There  was  thus  no  NO  central 
central  power,  either  legislative  or  judicial,  like  the  parliament  ^ify1"^ 
and  king's  courts  at  Westminster,  to  develop  and  unify  the  digenous 

J  German 

indigenous  German  law  which  grew  up  in  the  Middle  Ages  law. 
mainly  in  the  form  of  municipal,  local,  and  territorial  customs, 
ordinances,  and  statutes.  While  enactments  not  universally 
obeyed  were  occasionally  made  by  the  sovereign  in  the 
German  Diet  and  with  its  consent,  that  body,  even  in  the  days 
of  its  greatest  strength,  dealt  very  little  with  law  proper. 
Therefore,  as  a  great  German  jurist  has  expressed  it,  "When 
Roman  jurisprudence,  as  contained  and  set  forth  in  the  Cor- 

1  The  Holy  Roman  Empire,  p.  330. 


176 


THE  SCIENCE  OF  JURISPRUDENCE 


Reception 
of  Roman 
law  in 
Germany. 


Herman 
Conring's 
demon- 
stration. 


pus  Juris  Civilis,  made  its  way  across  the  Alps,  it  found,  so  to 
speak,  an  empty  and  vacant  territory,  which  it  was  able  to 
occupy  forthwith  without  the  slightest  resistance.  German 
jurisprudence,  in  fact,  dates  from  the  sixteenth  century,  i.e. 
its  existence  commences  with,  and  is  due  to,  the  reception  of 
Roman  law."  *  From  that  time  to  the  present  day,  it  has  there 
guided  and  determined  all  juristic  thought.  The  acceptance 
of  Roman  law  in  Germany  in  such  an  extensive  way  as  the 
common  law  of  the  country  is  usually  attributed  to  the  uni- 
versal character  and  scientific  completeness  of  the  system  as 
compared  with  the  insufficiency  and  clumsiness  of  the  indige- 
nous law;  to  the  notion  prevailing  at  the  time  that  Roman 
law  was  the  embodiment  of  the  written  reason  available  for 
the  whole  world;  and  to  the  theory  of  the  continuity  of  the 
original  Roman  Empire  and  the  Holy  Roman  Empire  of  the 
German  nation.  In  disposing  of  the  medieval  fancy  that 
Roman  law  was  published  by  the  emperor,  and  therefore  bind- 
ing on  all  the  countries  of  Christendom,  Herman  Conring,  in 
his  famous  treatise  De  origine  juris  Germanid,  1643,  put 
beyond  all  doubt  the  following  position :  "  (1)  The  view  that 
the  Corpus  Juris  Civilis  was  ever  published  in  Germany, 
as  a  law  binding  on  all  the  country,  is  a  fable  entirely  without 
foundation.  (2)  On  the  contrary  it  was  gradually  introduced 
in  the  fifteenth  century,  having  first  been  taught  at  the  uni- 
versities and  afterward  applied  in  the  courts  of  justice.  (3)  It 
is  in  force  only  because  it  has  been  received  by  usage,  volun- 
tarily; and,  consequently,  only  to  the  extent  and  in  the  form 
of  such '  usureception ' ;  in  other  words,  only  those  provisions  of 
the  Corpus  Juris  Civilis  are  in  force  which  have  been  actually 
received  by  usage,  and  these  provisions  only  subject  to  such 
modifications  as  have  been  imposed  upon  them  in  actual  use."2 

1  Sohm,  Institutes,  p.  2. 

2  See    Stintzing,    Geschichte    der    deutschen    Rechtsivissenschaft,    ii.    18    sq. ; 
Erwin     Greuber,    Introductory   Essay  to    Sohm's    Institutes  (Ledlie's    trans.), 
p.  xxii.     See  also  Bryce,  Holy  Roman  Empire,  pp.  369  sq. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  177 

After  the  conclusion  had  thus  been  established  that  Roman  Roman  law 
law  as  such  was  not  the  law  of  the  country,  German  jurists  ^  of  the 
of  the  seventeenth  century,  by  devoting  their  energies  to  a  country- 
study  of  the  law  as  actually  applied  through  the  decisions  of 
the  courts,  laid  the  foundation  for  the  development  of  that 
system  of  private  law  known  to  us  under  the  name  of  usus 
modernus  Pandectarum.     In  the  systematic  expositions  made 


e     i  •  i          /ii       /-i  Modernus 

by  such  jurists  every  sentence  of  the  written  law  (the  Corpus  Pandect^ 
Juris)  which  was  clearly  not  in  use   in  Germany  was   ex-  r 
eluded,  while  every  proposition  of  the  unwritten  law  (outside 
of  the  Corpus  Juris)  which  was  actually  in  use  in  Germany 
was  included.     By  dealing  in  that  way  with  the  Roman  and 
German  elements  which  made  up  the  private  law  actually  in 
force,  jurists  of  the  school  in  question,  while  following  the  order 
of  the  Digest,  expounded,  side  by  side,  Roman  law  as  modified 
by  the  customs  and  statutes  of  the  German  Empire,  and  pure 
German  law.    A  character  distinctly  national  was  thus  im- 
pressed upon  the  science  of  law  in  Germany  through  the  enor- 
mous labor  devoted  to  the  working  out  of  the  usus  modernus 
Pandectarum,  a  labor  which  emphasized  the  fact  that  the  what  the 
common  law  of  Germany  is  not  the  pure  private  law  of  Rome  ^Tof011 
as  laid  down  in  the  Corpus  Juris  Civilis,  but  that  law  as  modi-  Germany  »• 
fied  during  a  long  period  of  development,  partly  by  the  medi- 
eval legislation  of  the  church  as  embodied  in  the  canon  law, 
partly  by  the  customary  law  of  Italy  and  Germany,  and  partly 
by  the  legislation  of  the  former  German  Empire.     The  uncer- 
tainties and  delays  arising  out  of  the  application  of  such  an 
undigested  composite  in  the  actual  administration  of  justice 
stimulated  near  the  beginning  of  the  eighteenth  century  the 
growth  of  the  Law  of  Nature  School  (Naturrechtliche  Schule)  Law  of 
of  jurists  who  undertook  to  improve  the  existing  conditions 
by  drawing  from  the  lost  code  of  Nature  a  lucid  system  of 
clear  and  simple  rules.     That  philosophical  school  contended 
that  the  substance  of  the  law  may  be  evolved  at  any  moment 


178  THE  SCIENCE  OF  JURISPRUDENCE 

by  the  lawgiver  from  his  own  inner  consciousness,  and  then 

imposed  arbitrarily  in  the  form  of  positive  legislation  on  a 

country  irrespective  of  its  state  of  civilization  and  past  history. 

Tendency      The  tendency  of  that  idea,  so  emphasized  by  the  French 

toward 

codification,  jurists  of  the  eighteenth  century  and  countenanced  in  practice 
by  Bentham,  was  toward  codification.  In  due  time  came  the 
code  of  Bavaria  in  1756,  of  Prussia  in  1794,  of  Austria  in 
1810.  It  was  as  a  protest  against  this  demand  for  codifica- 
tion, and  in  particular  against  the  extension  of  the  Code 
Napoleon  to  Germany,  that  Savigny  published,  in  1814,  his 


pamphlet  (Vom  Beruf  unserer  Zeitfur  Gesetzgebung  und  Rechts- 
wissenschaft}  ,  in  which  he  expressed  an  idea,  unfamiliar 
before  that  time,  when  he  said:  "I  regard  the  law  of  each 
country  as  a  member  of  its  body,  not  as  a  garment  merely 
which  has  been  made  to  please  the  fancy,  and  can  be  taken 
off  at  pleasure  and  exchanged  for  another."  *  The  central 
idea  of  this  foremost  representative  of  the  Historical  School  in 
Germany  was  that  law  is  an  aspect  of  the  total  common  life 
of  a  nation;  not  something  made  by  the  nation  as  a  matter 
of  choice  or  convention,  but,  like  its  manners  and  language, 
bound  up  with  its  existence.  Therefore  Savigny  summed  it 
.all  up  in  the  declaration  that  the  people  is  always  the  true 
legislator  (Das  Gesetz  ist  das  Organ  des  Volksrechts).  In  the 
His  two  history  of  jurisprudence  his  two  great  works  are  the  Recht  des 
great  works.  fiesitzes  and  the  Beruf  unserer  Zeitfur  Gesetzgebung.  Of  the 
former,  which  marks  an  epoch,  Ihering  says:  "With  the 
Recht  des  Besitzes  was  the  juridical  method  of  the  Romans 
regained,  and  modern  jurisprudence  born."  While  found- 
ing or  rather  consolidating  the  Historical  School,  Savigny 
wisely  emphasized  the  fact  that  the  practice  and  theory  of 
jurisprudence  cannot  be  divorced  without  serious  injury  to 
both.  The  struggle  in  Germany  between  the  codifiers  and 

1  As  to  the  literature  on  this  controversy,  see  Bekker,  Pandektenrecht, 
§§15,  16;  Windscheid,  Pandekten,  §§9,  10;  Professor  Landsberg's  article, 
"Savigny,"  in  the  Allgemeine  deutsche  Biographic,  xxx.  437  sq. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  179 

their  opponents  ended,  for  a  time,  in  a  drawn  battle,  the  results 
of  which  were  written  upon  the  face  of  the  land.     Modern  Germany 
Germany  was  divided  into  two  great  regions  according  to  the  j^  tewo 
form  in  which  its  private  law  presents  itself.    Within  the  ter-  resions- 
ritory  of  the  Codified  Private  Law,  embracing  almost  the 
entire  eastern  half  of  Germany  to  the  right  of  the  Elbe,  and  the 
extreme  west,  to  the  left  of  the  Rhine,  the  formal  validity  of 
Roman  private  law  was  set  aside  in  favor  of  exhaustive  local  Territory 
codes  governing  the  entire  private  law  of  the  land,  codes  private  Taw. 
necessarily  constructed  on  the  basis  of  the  law  as  it  previously 
existed,  that  is,  on  the  basis  of  the  Pandects.    Within  the 
territory  of  the  uncodified  Law  of  the  Pandects,  also  called  Territory 
the  territory  of  the  Common  Law,  embracing  one  large  con-  °f  ^e    &" 
tinuous  stretch  of  country  extending  from  Schleswig-Hol-  Pandects- 
stein  in  the  north  to  Bavaria  in  the  south,  Roman  private 
law  possessed  formal  validity  and  was  enforced,  except  where 
expressly  altered  by  distinct  local  legislation.1 

The  first  step  toward  the  making  of  the  existing  American  First  steps 
Union  was  taken  when  in  January,  1786,  Virginia  issued  a  call 
for  a  convention  of  states  to  meet  at  Annapolis  in  order  to  con- 
sider  the  establishment  of  a  uniform  commercial  system.2    The  manv  com- 

mercial. 

first  modern  effort  to  give  unity  to  law  in  Germany  was  made, 
as  a  prelude  to  the  movement  for  national  unity,  by  the 
General  Bills  of  Exchange  Law  (Wechselordnung ,  1848-1850), 
while  a  general  Commercial  Code  (Gemeines  Handelsgesetz- 
buch),  enacted  in  various  states  between  1862  and  1866,  was 
reenacted  for  the  new  Empire  in  1871.  The  preparation  of  a 
new  general  code  for  the  whole  German  Empire  3  began  in 

1  Sohm,  Institutes,  pp.  3-4. 

2  Bancroft,  History  of  the  Constitutions  of  the  United  States,  i.  253  sq. 

*  When,  in  December,  1870,  sixty-four  years  after  the  dissolution  of  the  old 
Empire,  Germany  became  again  a  single  state  in  the  eyes  of  Europe,  it  remained 
in  theory  a  mere  federation.  And  yet  the  sovereign  legislative  power  is  theoreti- 
cally unlimited.  "It  can,  by  means  of  constitutional  amendment  set  aside  the 
bounds  placed  by  the  constitution  between  its  sphere  and  that  of  the  individual 
states,  that  is,  alter  them  without  the  consent  of  the  states ;  it  can  also  with- 


180  THE  SCIENCE  OF  JURISPRUDENCE 

General  1874,  and  the  work,  practically  completed  in  1896,  was  pro- 
German  mulgated  officially  and  took  effect  January  1,  1900.  We 
^oire'  should  be  able  to  look  with  confidence  for  an  outline  of  this 
Sohm's  great  code  to  the  famous  jurist,  Rudolph  Sohm,  who  was  a 

outline. 

member  of  the  commission  that  made  it.1  From  him  we  learn 
that  the  reestablishment  of  the  German  Empire  was  essential 
to  the  reestablishment  of  German  law ;  that  that  law  as  now 
embodied  in  the  Civil  Code  "is  compiled  principally  from  the 
various  provincial  codes  before  mentioned  and  notably  from 
those  of  Prussia  and  Saxony."  He  had  told  us  long  before 
that  "it  would  be  a  mistake  to  suppose  that  the  framers  of 
these  codes  (the  Prussian  Landrecht,  etc.)  were  suddenly  in- 
spired with  some  new  and  original  wisdom.  The  codes  were, 
of  course,  constructed  on  the  basis  of  the  law  as  it  previously 
existed.  Inasmuch,  then,  as  prior  to  these  codes  (i.e.  from  the 
reception  of  Roman  law  in  the  sixteenth  century  down  to 
the  end  of  the  eighteenth  century)  the  law  of  the  Pandects 
had  subsidiary  force  as  law  throughout  the  whole  of  Germany, 
these  codes  must,  of  course,  have  been  framed  more  particu- 
larly on  the  basis  of  the  Pandects.  The  Prussian  Landrecht, 
the  Saxon  and  Austrian  civil  codes  contain  a  large  number  of 
legal  rules  which  are  directly  borrowed  from  the  law  of  the 
Pandects  (the  French  civil  code  contains  less  Roman  law  than 
the  others).  The  study  of  the  Pandect  law,  then,  will  supply 
the  necessary  clew  without  which  the  civil  code  just  referred 
to  can  never  be  fully  and  thoroughly  understood."  2  That 
critical  statement  as  to  the  character  of  the  German  provincial 

draw  from  the  states  the  powers  reserved  to  them.  In  a  certain  sense,  there- 
fore, it  may  be  said  that  the  individual  states  possess  their  magisterial  rights 
only  by  sufferance  of  the  Empire,  only  by  virtue  of  its  will."  Laband,  Das 
Staatsrecht  des  deutschen  Reiches  (Marquardsen's  Handbuch),  p.  22.  Amend- 
ments originated  and  acted  upon  as  ordinary  laws  would  be  may  be  defeated, 
however,  by  fourteen  negative  votes  in  the  Bundesrath.  See  Wilson,  The  State, 
p.  254. 

1  See  his  article  on  the  general  theory  and  purpose  of  the  code  in  The  Forum, 
October,  1899. 

3  Institutes,  p.  5. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  181 

codes,  especially  as  to  the  character  of  the  codes  of  Prussia 
and  Saxony,  from  which  Mr.  Sohm  says  the  present  Civil  Code 
was  principally  and  notably  compiled,  must  be  kept  steadily  Present 


in  view  when  we  read  in  his  more  recent  article  the  declaration  e 


on 


that  "  the  new  Civil  Code  of  Germany  is  only  to  a  very  limited 
extent  Roman  hi  its  origin."     He  certainly  could  not  have  Saxony. 
intended  to  say  more  than  that  Roman  law  is  no  longer  the 
common  law  of  Germany  or  of  any  part  of  that  Empire;   he 
could  not  have  intended  to  say  less  than  that  the  new  Code 
contains  the  private  law  in  civil  matters,  compounded  of  Ro- 
man law  and  Teutonic  customs  as  modified  by  experience 
and  legislation  during  a  long  period  of  historical  development. 
Mr.  Bryce  stated  the  matter  fairly  when  he  said  :  "This  Code,  Bryce's 
far  from  being  pure  Roman  law,  embodies  many  rules  due  to 
medieval  custom  (especially  custom  relating  to  land  rights) 
modernized  to  suit  modern  conditions,  and  also  a  great  deal 
of   post-medieval   legislation."  1    While   the   Landesrecht  or 
"Provincial  Law"  is  expressly  annulled,  a  not  inconsiderable 
number  of  its  enactments  remain  in  force  which  are,  strictly 
speaking,  "agrarian,"  because  designed  for  the  farmer,  for 
agricultural  conditions  generally,  as  well  as  for  the  protection 
of  vested  rights  (feudal  rights,  feoffments  in  trust,  allodial  es- 
tates, and  copyholds).     As  the  farmer  and  the  merchant  are 
and  have  been  the  two  great  powers  in  German  history,  the  Farmer  and 
industrial  and  agrarian  laws  that  survive  may  well  be  com-  ™.^°t  ai 
pared  to  the  jus  civile,  while  the  laws  of  the  Civil  Code  may  be  p°wera  «» 
said  to  resemble  the  Roman  jus  gentium.    The  merchant  has  history. 
not  inaptly  been  called  "the  father  of  the  Civil  Code  of  Ger- 
many" because,  as  commercial  intercourse  recognizes  no  na- 
tional boundaries,  he  was  naturally  the  first  to  desire  a  homo- 
geneous system  of  civil  rights.     It  was  the  mercantile  element  Mercantile 
in  the  cities  that  eventually  crushed  the  spirit  of  feudalism  ;  Crushed 
it  was  the  mercantile  element  that  opened  the  way  for  an  feudali"n- 

1  Studies  in  History  and  Jurisprudence,  p.  92. 


182 


THE  SCIENCE  OF  JURISPRUDENCE 


Rules  of 
construc- 
tion. 


Roman 
private  law 
in  Holland. 


Grotius 
and  his 
successors. 


Imperial  Code  by  first  creating  a  uniform  system  of  com- 
mercial law.  In  it  the  interests  of  intercourse  are  primary; 
exchange  is  everything.  The  merchant  rules  the  domain 
of  civil  law ;  the  bona  fide  party  is  the  principal  personage  of 
it;  the  protection  of  bona  fide  acquisition  obtains  priority 
over  the  guardianship  of  property.  No  paragraph  of  the  Code 
can  be  applied  singly;  construction  and  application  must  be 
in  accord  with  it  as  a  whole.  Above  all  stands  the  well- 
known  axiom  that  true  equity  is  not  contained  in  the  letter 
of  the  law,  but  must  be  read  between  the  lines.  The  applica- 
bility of  the  several  clauses  of  the  Code  to  special  instances  is 
left  to  the  discretion  of  the  judge ;  the  opinion  of  the  courts  is 
superior  not  only  to  the  words  of  the  contract,  but  also  to  the 
letter  of  the  law.  In  this  rule  of  interpretation,  the  capstone 
of  the  Code,  we  have  the  expanding  and  adapting  power  of  the 
praetorian  equity  in  full  force. 

19.  In  Holland,  where  the  antiquarian  researches  of  the 
"  French  School "  were  successfully  carried  on  during  the  seven- 
teenth and  a  part  of  the  eighteenth  centuries  by  the  so-called 
"  Dutch  School,"  Roman  private  law  won  its  greatest  triumph 
through  the  labors  of  Hugo  Grotius  (Huig  van  Grooi),  who  ex- 
tracted from  it  a  set  of  principles  which  became  the  basis  of  the 
existing  system  of  international  law.  The  need  of  a  code  to 
regulate  their  intercourse  became  pressing  when,  by  the  Peace 
of  Westphalia,  a  crowd  of  petty  principalities  were  recognized 
as  practically  independent  states.  Such  a  code1  Grotius  and 
his  successors  built  up  out  of  Roman  private  law  in  its  Ger- 
man form,  Holland  being  at  that  time  practically  German. 
No  more  novel  or  difficult  problem  was  ever  presented  for  so- 
lution than  that  which  confronted  the  publicists  of  the  six- 
teenth and  seventeenth  centuries  when  they  were  called  upon 
to  furnish  rules  adequate,  by  virtue  of  their  intrinsic  weight 

1  "That  system  is,  indeed,  entirely  a  German  creation,  and  could  have  arisen 
in  no  country  where  the  law  of  Rome  had  not  been  the  fountain  of  legal  ideas 
and  the  groundwork  of  positive  codes."  Bryce,  Holy  Roman  Empire,  p.  370. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  183 

and  dignity,  to  compel  the  obedience  of  the  freshly  emancipated 
European  nationalities,  without  the  coercive  force  of  any 
recognized  central  authority.  As  imitation  is  always  easier 
than  invention,  it  is  not  strange  that  every  mind  which 
attempted  to  solve  the  problem  should  have  turned  instinc-  Turned 
tively  to  Roman  jurisprudence  as  the  only  source  from  which 
the  vacuum  could  be  filled.  The  most  enduring  outcome  of 
Roman  civilization,  surviving  the  wreck  of  two  empires,  was  prudence. 
Roman  law,  whose  revived  study  during  the  twelfth  century, 
in  the  schools  of  Italy,  Spain,  France,  and  England,  caused  it 
to  be  regarded,  in  the  modern  as  in  the  ancient  world,  as  the 
perfection  of  human  wisdom,  the  only  true  and  eternal  law. 
A  special  effort  has  heretofore  been  made  to  draw  out  in  some 
detail  the  process  through  which  a  particular  branch  of  Ro- 
man private  law,  administered  by  the  praetor  peregrinus  and 
known  as  the  jus  gentium,  was  blended  with  the  Stoic  concep- 
tion of  law  in  the  higher  sense,  as  "  right  reason,  pervading  all 
things,"  and  proceeding  "  from  Zeus  and  the  common  Nature."  * 
Even  in  Cicero's  time  the  fusion  of  the  jus  gentium  with  the  Fusion  of 
jus  naturale  was  so  complete  as  to  induce  him  to  declare  them  J^^^u 
identical.2  In  that  way  the  jus  gentium  was  clothed  with  a  naturale' 
higher  authority,  a  philosophic  dignity  which  tended  to  ob- 
scure its  humble  origin  as  a  mere  division  of  private  law.  To 
that  cause  may  be  attributed  the  fact  that  the  term  jus  gen- 
tium was,  in  a  few  exceptional  cases,3  used  out  of  its  normal 
and  proper  sense  to  indicate  a  branch  of  law  binding  on  all 

1  See  above,  p.  38. 

2  "  Lege  naturae,  id  est  gentium,"  De  Off.  i.  23.     For  a  very  careful  col- 
lection of  the  authorities  regarding  jus  naturale  and  jus  gentium,  see  the  work  of 
Dr.  Moriz  Voigt,  Die  Lehre  vom  Jus  Naturale,  aequum  et  bonum  und  Jus  Gentium 
der  Romer;  and  also  Prof.  D.  G.  Ritchie's  Natural  Rights,  Part  i.  (published 
in  1895) ;  Sir  F.  Pollock's  article  On  the  History  of  the  Law  of  Nature,  Columbia 
Law  Review,  January,  1901. 

3  "  Hoc  vos  Feciales,  juris  gentibus  dicitis  ?  "  Liv.  ix.  II.  "  Populum  Romanum 
neque  recte  neque  probono  facturum,si  ab  jure  gentium  se  prohibuerit."     Sal- 
lust,  Bell.  Jug.,  c.  xxii.     Cf.  Professor  Nettleship's  article  on   Jus  Gentium  in 
the  Journal  of  Philology,  vol.  xiii.,  No.  26. 


184 


THE  SCIENCE  OF  JURISPRUDENCE 


Holland's 
statement. 


Maine's 
statement. 


nations  in  the  direction  of  their  international  relations  as  jus 
commune  gentibus.  And  so  it  may  be  true  that  "  there  floated 
also  always  before  the  eyes  of  the  later  Roman  jurists  a  vision 
of  a  '  jus  naturale;'  a  universal  code,  from  which  all  particular 
systems  are  derived,  or  to  which  they  all  tend,  at  least,  to  ap- 
proximate :  a  set  of  rules,  the  matter  or  contents  of  which  is 
of  universal  application." 1  The  effort  to  give  to  the  blended 
product  of  jus  gentium  and  jus  naturale  a  strained  construction 
was  never  successful.  It  was  not  the  extravagant  interpreta- 
tion of  Ulpian,2  but  the  more  restricted  and  more  reasonable 
one  of  Gaius,3  that  finally  determined  its  meaning  in  the  time 
of  the  Antonines.  As  Sir  Henry  Maine  has  expressed  it :  "  At 
last,  at  a  peculiarly  felicitous  conjuncture,  Ayala  and  Grotius 
were  able  to  obtain  for  it  the  enthusiastic  assent  of  Europe,  an 
assent  which  has  been  over  and  over  again  renewed  in  every 
variety  of  solemn  engagement.  .  .  .  Having  adopted  from 
the  Antonine  jurisconsults  the  position  that  the  jus  gentium  and 
the  jus  naturae  were  identical,  Grotius,  with  his  immediate 
predecessors  and  his  immediate  successors,  attributed  to  the 
law  of  nature  an  authority  which  would  never  perhaps  have 
been  claimed  for  it,  if  'law  of  nations'  had  not  in  that  age 
been  an  ambiguous  expression.  They  laid  down  unreservedly 
that  natural  law  is  the  code  of  states,  and  thus  put  in  operation 
a  process  which  has  continued  almost  down  to  our  own  day,  the 
process  of  engrafting  on  the  international  system  rules  which 
are  supposed  to  have  been  evolved  from  the  unassisted  con- 
templation of  the  conception  of  nature."  4  As  Grotius  and  his 
predecessors  were  well-trained  civilians,  there  is  no  basis  for 
the  assumption  that  they  were  befogged  as  to  the  true  nature 
of  jus  gentium  and  jus  naturale  as  convertible  terms.  The  fact 

1  Holland,  Elements  of  Jurisprudence,  p.  6. 

2  Ulpian 's  definition  of  the  laws  of  nature  and  of  nations  appears,  however, 
in  the  Spanish  code  of  Las  Siete  Partidaa. 

*  Inst.  i.  1.     See  also  Just.  Inst.  i.  2,  §  2. 

*  Ancient  Law,  pp.  95-96. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  185 

that  the  jus  gentium  was  only  a  branch  of  Roman  private  law, 
and  not  a  system  of  rules  which  had  been  previously  applied 
to  the  relations  of  states,  was  no  reason  why  it  should  not 
have  been  lifted  into  a  higher  sphere.  Before  Grotius  appeared 
upon  the  scene  his  Spanish  and  Italian  predecessors  had  sur- 
veyed the  whole  field,1  —  Gentilis  in  particular  having  specially  Gentilis. 
emphasized  the  fact  that  the  jus  naturale  was  the  highest  em- 
bodiment of  human  reason,  by  which  all  historical  precedents 
were  to  be  tested,  and,  if  necessary,  set  aside.2  And  yet,  acute 
and  learned  as  they  were,  the  predecessors  of  Grotius  were  not 
able  to  catch  the  ear  of  the  world.  It  was  his  good  fortune 
"to  come  along  behind  them  and  pick  up  their  brains,"  and 
to  fuse,  through  his  rare  art  of  exposition,  their  scattered  and 
fragmentary  thoughts  into  one  coherent  whole  which  appealed 
in  due  time  to  all  mankind,  and  thus  first  awakened  the  con- 
science of  governments  to  the  Christian  sense  of  international 
duty.  Nothing  could  be  more  clear  or  vivid  than  Grotius's  Grotius's 
definition  of  natural  law  as  the  Antonine  jurists  had  under-  Of  natural 
stood  it.  In  his  Prolegomena3  he  declares  that  "the  principles  law' 
of  that  law,  if  you  rightly  consider,  are  manifest  and  self- 
evident,  almost  after  the  same  manner  as  those  things  are  that 
we  perceive  with  our  outward  senses,  which  do  not  deceive  us, 
if  the  organs  are  rightly  disposed,  and  if  other  things  neces- 
sary are  not  wanting."  And  in  the  body  of  his  work  he  adds : 
"  Natural  right  is  the  rule  and  dictate  of  right  reason,  showing 
the  moral  deformity  or  moral  necessity  there  is  in  any  act, 
according  to  its  suitableness  or  unsuitableness  to  a  reasonable 
nature,  and  consequently,  that  such  an  act  is  either  forbid  or 

1  As  to  the  works  of  Oldendorp,  Suarez,  Victoria,  Soto,  Ayala,  Gentilis, 
and  Winckler,  see  Taylor,  International  Public  Law,  §§  40,  49. 

3  In  1588  he  published  at  London  his  DeJure  Belli  Commentatio  Prima,  upon 
which  Grotius  founded  his  De  Jure  Belli  ac  Pads  (Paris,  1625).  Of  Gentilis 
Grotius  says:  "Cujus  diligentia  sicut  alios  adjuvari  posse  scio  et  me  adjutum 
profiteer."  Proleg.,  §  39.  An  admirable  edition  of  his  work,  edited  by  Mr. 
Holland,  appeared  in  1877. 

8  De  Jure  Belli  ac  Pacis,  §  XL. 


186 


THE  SCIENCE  OF  JURISPRUDENCE 


lawgiver. 


Commanded  by  God,  the  author  of  nature."  1  One  can  almost 
imagine  that  he  hears  the  great  Stoic  Chrysippus  speaking  of 
the  natural  law  as  "the  right  reason,  pervading  all  things," 
and  "proceeding  from  Zeus  and  the  common  nature."2 
Grotius,  following  in  the  footsteps  of  Suarez  and  Gentilis, 
Nature  as  a  accepted  the  dominant  idea  of  the  age  that  nature  was  a  law- 
giver. His  dream  was  to  place  her  as  such  upon  the  vacant 
imperial  throne  and  to  interpret  her  mandates  to  nations 
who  would  admit  no  other  superior.  "The  law  of  nature  is," 
he  says,  "so  unalterable  that  God  himself  cannot  change  it. 
For  though  the  power  of  God  be  immense,  yet  may  we  say 
that  there  are  some  things  unto  which  this  infinite  power  does 
not  extend.  .  .  .  For  instance,  then,  as  twice  two  should  not 
be  four,  God  himself  cannot  affect;  so  neither  can  He,  that 
what  is  intrinsically  evil  should  not  be  evil."  The  practi- 
cal difficulty  inherent  in  this  august  conception  was  its 
vagueness,  the  same  difficulty  that  beset  Comte's  system  of 
religion,  in  which  Humanity  as  a  concrete  conception  was 
exalted  to  the  throne  occupied  by  the  Supreme  Being  under 
monotheistic  systems.  Eternal  and  unalterable  as  the  Gro- 
tian  law  of  nature  was  said  to  be,  it  was  in  fact  indeterminable, 
although  in  theory  it  might  be  assumed  to  be  otherwise.  In- 
terpreted by  one  mind,  it  meant  one  thing,  by  another  some- 
thing quite  the  opposite.  Therefore,  without  some  kind  of 
common  consent  as  to  what  its  precepts  were,  it  was  nothing 
more  than  a  glittering  abstraction.  Clearly  perceiving  that 
difficulty,  Grotius  very  discreetly  formulated  an  alternative 
basis  for  the  new  system  which  enabled  it  to  rest  upon  consent 
alone.  Alongside  of  the  law  natural,  he  said,  there  was  a  law 
voluntary  whose  nature  was  twofold,  divine  and  human. 

1  De  Jure  Belli  ac  Pads,  I.,  c.  i.,  §  10. 

*  Grotius  says  in  so  many  words:  "And  in  this  sense  Chrysippus  and  the 
Stoics  said  that  the  original  of  right  is  to  be  derived  from  no  other  than  Jupiter 
himself;  from  which  word  Jupiter  it  is  probable  the  Latins  gave  it  the  name 
jus."  Proleg.,  §  12. 


Vagueness 
of  the 
conception. 


Alternative 
basis  resting 
on  consent 
alone. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  187 

While  the  former  could  never  conflict  with  the  law  natural,  the 
latter  might.    This  human  voluntary  law  he  divided  into  three 
parts ;  first,  the  law  made  for  the  benefit  of  a  single  society,  the 
civil  law;  second,  the  law  of  the  particular  condition;  third, 
the  law  made  for  the  benefit  of  all  societies,  the  law  of  nations.1 
The  authority  of  that  law,  he  said,  was  derived  from  the  ap-  Only  real 
proval  of  all,  or  at  least  of  many  nations, —  the  proof  of  it  oTintema- 
consisting  of  continued  usage  and  the  testimony  of  experts.  tionallaw- 
Thus  it  was  that  Grotius  reached  the  common-sense  basis 
upon  which  the  law  of  nations  now  reposes,  the  abstract  and 
transcendental  foundation  embodied  in  his  first  postulate 
having  been  finally  swept  away. 

20.  Having  now  outlined  the  history  of  legal  development  Roman 
in  those  countries  in  which  Roman  private  law  has  made  its 
deepest  impression,  a  glance  must  be  taken  at  those  vast  out- 
lying  regions  in  which  its  influence  though  marked  has  been  countries, 
less  decisive.  The  statement  has  been  made  heretofore  that 
from  Constantinople  as  a  nucleus  the  imperial  law  extended 
itself  over  the  Euxine  and  Balkan  countries  between  the  tenth 
and  fifteenth  centuries.2  Together  with  Bulgaria,  Servia 
fell  under  the  power  of  the  emperor,  and  its  affairs  were  for  Servia. 
a  time  managed  by  a  Greek  governor.  Finally  the  Servian 
ruler  Stephen  Dushan,  who  divided  his  kingdom  into  eight 
districts  and  arranged  everything  on  the  Byzantine  model, 
conquered  the  whole  of  Macedonia  and  caused  himself  to  be 
crowned  emperor  of  Servia.  He  it  was  who  published  at  a 
Diet  in  1349  his  celebrated  Zakonik,  or  "Book  of  Laws," 
which,  as  the  earliest  specimen  of  Servian  legislation,  has  come 
down  in  several  manuscripts.3  Roumania  is  the  name  offi- 
cially  adopted  by  the  united  kingdom  that  comprises  the  for- 

1  De  Jure  Belli  ac  Pads,  I.,  c.  i.,  §§  13,  14,  15. 

*  See  above,  p.  147. 

*  It  was  first  published  by  Raich  in  his  History  at  the  close  of  the  eighteenth 
century.     Since  then  other  editions  have  appeared,  the  most  important  being 
those  of  Miklosich  and  Novakovich. 


188 


THE  SCIENCE  OF  JURISPRUDENCE 


Greece. 


Russia. 


Poland. 


Scandi- 
navian 
countries. 


Japan. 


mer  principalities  of  Walacia  and  Moldavia,  the  name  in  its 
native  form  appearing  simply  as  "Romania,"  which  repre- 
sents the  claim  to  Roman  descent  put  forward  by  its  inhabit- 
ants. The  modern  law  of  these  principalities,  which  drew 
their  religion  and  culture  from  the  Eastern  Empire,  may  be 
referred  to  the  Roman  type,  so  deeply  has  its  substructure  of 
Slavonic  custom  been  affected  by  Byzantine  influences  and 
by  a  later  knowledge  of  Roman  law  drawn  from  France  and 
Austria.  The  existing  legal  system  of  Greece  is  based  on 
Roman  law,  with  modifications  drawn  from  France  and  Ba- 
varia. The  Commercial  Code  is  identical  with  that  of  France. 
Russia,  which  also  derived  her  religion  and  culture  from  the 
Eastern  Empire,  has  been  described  as  an  outlying  and  half- 
assimilated  province  of  the  legal  realm  of  Rome  because  its 
law,  originally  Slavonic  custom,  was  modified  at  the  outset 
to  some  extent  by  Byzantine  influences,  and  in  more  recent 
times  by  principles  regarding  property  rights  and  contracts 
drawn  from  the  Code  Napoleon,  and  to  a  less  degree  from  the 
jurisprudence  of  Germany.  In  Poland  the  doctrines  of  Ro- 
man law  took  rather  a  deeper  hold  than  in  Russia;  first,  be- 
cause, as  a  Catholic  country,  the  influence  of  the  canon  law  was 
potent;  second,  because,  lying  nearer  to  Germany,  German 
teaching  and  German  commentaries  on  Roman  law  were  more 
accessible.1  In  the  same  way  the  customary  law  of  the  Scan- 
dinavian countries,  at  the  outset  purely  Teutonic,  has  been 
modified  by  Roman  principles  derived  chiefly  through  the  Ger- 
man universities  and  German  juridical  literature.  And  here 
it  may  be  added  that  while  the  ancient  laws  of  Japan  be- 
longed to  the  Chinese  law  system,  the  present  laws  may  on  the 
whole  be  said  to  belong  to  that  branch  of  Roman  law  which 

1  "In  Lithuania  the  rule  was  that  where  no  express  provision  could  be  found 
governing  a  case,  recourse  should  be  had  to  the  'Christian  laws.'  Speaking 
generally,  one  may  say  that  it  was  by  and  with  Christianity  that  Roman  law 
made  its  way  in  the  countries  to  the  east  of  Germany  and  to  the  north  of  the 
Eastern  Empire."  Bryce,  Studies  in  History  and  Jurisprudence,  p.  93,  note  1. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  189 

may  be  called  the  German  system,  though  they  have  taken 
a  good  deal  from  the  English  law  system  also.1 

21.   As  prize  courts  are  the  outcome  of  maritime  usages  Roman 
that  represent  the  very  earliest  agreement  of  civilized  nations  th^Sea 
as  to  their  mutual  rights  and  interests,  —  antedating  by  cen-  Laws-" 
turies  any  general  understanding  as  to  the  principles  that  should 
regulate  intercourse  on  land,  —  their  decisions  must  be  justly  Prize  courts 
regarded  as  the  earliest  sources  of  international  law,  or,  as  sources  of 


Austin  has  expressed  it,  the  places  where  its  rules  are  first 
found.2    And,  as  it  is  impossible  to  understand  the  position  of 
prize  courts  as  international  tribunals  without  some  prior 
knowledge  of  the  history  of  the  customary  laws  of  the  sea  out 
of  which  their  jurisdiction  arose,  such  laws  should  be  mentioned 
here  for  the  reason  that  the  starting  point  of  them  all  is  to  be  Rubrics 
found  no  doubt  in  the  rubrics  relating  to  ships  and  shipping  ships^md0 
contained  in  the  Roman  civil  law.3    The  mighty  forces  that  shiPPing- 
finally  swept  away  the  Holy  Roman  Empire  as  an  international 
power  gradually  crystallized  the  elements  out  of  which  its 
successor  grew.    The  Crusades  gave  an  immense  impetus  to  influence  of 
trade,  and  the  Italian  cities  of  Genoa,  Pisa,  Florence,  and  Ven-  onTrade. 
ice,  through  which  flowed  the  swelling  stream  of  intercourse 
eastward,  rose  suddenly  into  greatness.     The  new  commercial 
activity  thus  imparted  to  the  south  was  rivaled  in  the  north 
by  a  movement  that  drew  together  about  1260  a  few  Baltic 
towns  in  the  Hanseatic  League,  gradually  extended  to  no  less  Hanseatic 
than  ninety  cities,  whose  trade  found  its  way  to  the  Med- 
iterranean through  the  League  of  the  Rhine  formed  about 
1250,  and  through  the  Swabian  League  formed  1376.4     The 

1  See  Tokichi  Masao's  article  on  "The  Sources  of  Ancient  Siamese  Law," 
in  Yale  Law  Journal,  November,  1905. 

2  Jurisprudence,  II.  526-528. 

*  Especially  the  rubric  de  lege  Rhodia  de  jactu,  quoting  and  confirming  the 
Rhodian  law  as  to  Jettison.     Dig.  14.    2.      There  are,  however,  many  other 
rubrics  of  the  Roman  law  relating  to  shipping.     See  Dig.  4,  9  ;   22.  2  ;  47.  5,  9. 

*  Hohlbaum,  Hansisches  Urkundenbuch,  I.,  Nos.  4,  5,  6  ;  Warnkonig,  Flan- 
dritche  Stoats-  und  Rechtsgeschichte,  I.  315;    Cunningham,  Growth    of  English 
Industry  and  Commerce,  i.  138,  141,  146,  174,  184. 


190 


THE  SCIENCE  OF  JURISPRUDENCE 


Collections 
of  sea  laws. 


Laws  of 
Ole>on. 

Laws  of 
Wisbuy. 


influence  thus  exerted  by  the  Crusades  upon  commerce 
and  commercial  unions  upon  land  extended  itself  in  due  time 
to  trade  upon  the  sea,  and  the  outcome  was  the  "Sea  Laws," 
a  term  employed  by  writers  on  maritime  law  in  the  sixteenth 
century  to  designate  collections  of  usages  of  the  sea  that  had 
been  recognized  as  having  the  force  of  customary  law,  either 
through  the  decrees  of  a  maritime  court,  or  through  the  reso- 
lutions of  a  congress  of  merchants  and  shipmasters.  To  the 
first  class  belong  the  usages  of  the  mariners  of  the  Atlantic 
known  as  the  Laws  of  Oleron,  to  the  second  the  customs  of  the 
mariners  of  the  North  Sea  and  of  the  Baltic  known  as  the 
Laws  of  Wisbuy.1  It  is  believed  that  the  judgments  of  the 
marine  court  of  Oleron  were  drawn  up  as  early  as  the  twelfth 
century;  and  it  is  probable  that  a  record  of  such  judgments 
was  brought  into  England  and  published  as  law  by  Richard  I., 
upon  his  return  from  the  Holy  Land.2  At  whatever  date  re- 
ceived such  usages  and  judgments  of  the  sea  were  entered  in 
the  Black  Book  of  the  Admiralty  as  the  Laws  of  Oleron,  and 
thus  became  "  a  national  code  of  maritime  law  for  the  direction 
of  the  admiral;  and  whatever  was  defective  therein  was 
supplied  from  that  great  fountain  of  jurisprudence,  the  civil 
law,  which  was  generally  adopted  to  fill  up  the  chasms  that 
appeared  in  any  of  the  municipal  codes  of  modern  European 
nations."  3  So  great  was  the  authority  of  the  Laws  of  Oleron 
in  most  of  the  Atlantic  ports  of  France  that  portions  of  them 


1  As  to  the  causes  which  brought  about  the  collection  of  the  judgments  of 
the  maritime  court  of  Ole'ron,  see  Cleirac's  introduction  to  his  work  Les  Us  et 
Coustumes  de  la  Mer,  first  printed  at  Bordeaux  in  1647.     As  to  the  sea  code 
of  Wisbuy,   borrowed  in  part  from   the  laws  of   Ole'ron  and  Amsterdam,  see 
Hiillman,  Stadtewesen  des  Mittelalters,  i.  182. 

2  The  earliest  known  text  is  contained  in  the  Liber  Memorandorum  to  be 
found  in  the  archives  of  the  Guildhall  of  the  corporation  of  London.     To  the 
same  century  belong  the  judgments  of  Damm,  the  port  of  Bruges,  which  began 
to  be  of  importance  before  the  close  of  the  twelfth  century.     For  the  old  and 
true  text,  see  Warnkonig,  Flandrische  Stoats-  und  Rechtsgeschichte,  I.,  Appendix, 
No.  XLI. 

1  Reeves,  History  of  English  Law,  iii.  389. 


EXTERNAL  HISTORY  OF  ROMAN  LAW  191 

were  incorporated  into  that  model  of  marine  legislation  known 

as  the  Ordonnance  de  la  Marine  of  Louis  XIV.,  published  in 

1681,  and  expounded  less  than  a  century  later  by  Valin  in  the  Of  Louis"7 

famous  commentary  from  which  English  and  American  jurists  XIV> 

and  text  writers  have  drawn  without  stint.    The  Ordonnance 

of  Louis  was  also  enriched  from  the  Consolato  del  Mare,  whose 


authorship  is  contested  by  both  Spain  and  Italy.  The  most  a 
probable  theory  of  its  origin  seems  to  be  that  which  regards  it 
as  a  gradual  collection  of  the  early  maritime  customs  of  the 
commercial  cities  of  the  Mediterranean  made  between  the 
twelfth  and  fourteenth  centuries.1  The  first  edition  was  that 
published  in  the  Catalan  dialect  at  Barcelona  in  1494  (Libro 
del  Consulado)?  but  by  common  consent  the  best  is  that  of 
Pardessus  contained  in  his  Collection  of  Maritime  Laws.3  The 
greatest  importance  has  been  attached  to  its  chapters  on  ma- 
rine captures  in  war  embodying  the  leading  principles  of  prize 
law,  in  regard  to  which  it  has  in  recent  times  exercised  an  im- 
portant influence.4  Of  a  more  comprehensive  character  than 
the  Consolato  del  Mare,  and  of  a  considerably  later  date,  is  the 
Guidon  de  la  Mer,  drawn  up  toward  the  close  of  the  sixteenth  Guidon 
century,  probably  at  the  instance  of  the  merchants  of  Rouen.5 
When  the  time  came  for  English  judges  to  realize  that  the  doc- 
trines of  the  common  law  were  not  equal  to  the  growing  exi- 
gencies of  English  commerce  by  land  and  sea,  they  were  not 
slow  to  expand  their  simple  code  by  the  introduction  of  new 
principles  drawn  from  foreign  sources.  Foremost  in  the  good  Work  of 
work  was  Lord  Mansfield,  a  well-trained  civilian,  who,  in  his 


1  Grotius  refers  to  it  as  containing  the  constitutions  of  Spain,  France,  Cyprus, 
Syria,  the  Balearic  Isles,  Genoa,  and  Venice. 

2  Called  also  Codigo  de  las  Costumbres  Maritimas  de  Barcelona. 

3  Collection  des  Lois  Maritime*   anterieurs  au  XVIII6  Siecle  (Paris,  1828- 
1845,  6  vols.),  II.,  c.  XII. 

4  "They  agree  at  present  with  the  maritime  code  of  Europe,  notwithstanding 
many  attempts  to  revise  their  regulations."     Manning,  Law  of  Nations,  p.  15. 

5  The  second  part  of  Cleirac's  work,  Lea  Us  et  Coustumes  de  la  Mer  (Bordeaux, 
1647),  is  devoted  to  Le  Guidon. 


192  THE  SCIENCE  OF  JURISPRUDENCE 

opinion  in  the  case  of  Luke  v.  Lyde,1  involving  the  important 
question  of  freight,  pro  rate,  cites  the  laws  of  Rhodes,  the 
Digest,  the  Consolato  del  Mare,  the  Laws  of  Ole"ron  and  of 
Wisbuy,  Roccus,  De  Navibiis  et  Naulo,  and  the  Marine  Ordi- 
nance of  Louis  XIV. 

1  2  Burr  882.  Roccus,  a  Neapolitan  lawyer,  published  a  large  work  on  mari- 
time law  in  1655,  from  which  was  compiled  a  smaller  work  in  Amsterdam  in 
1708,  entitled  De  Navibus  et  Naulo. 


CHAPTER   IV 

EXTERNAL  HISTORY   OF  ENGLISH   LAW 

1.   In  the  preceding  chapter  the  fact  was  emphasized  that  Growing 
the  public  law  of  Rome,  constitutional  and  administrative,  ^English6 
was  rejected  because  inapplicable  to  the  new  conditions  that  Public  Uw- 
arose  when  the  state  system  of  modern  Europe,  in  which 
the  state  as  a  nation  is  the  unit,  swept  away  and  superseded 
the  ancient  state  system  in  which  the  city  commonwealth 
had  been  the  unit.      What  did  survive  was  the  private  civil 
law  of  family  and  property,  of  contract  and  tort,  based  on 
principles  of  natural  equity  and  universal  reason  which  have 
not  lost  their  force  with  the  altered  circumstances  of  more 
recent  times.    That  body  of  Roman  private  law,  which  seems  Roman 
to  be  clothed  with  a  kind  of  immortality,  and  which  has  as-  pn 
serted  a  wider  influence  upon  civilization  than  any  other 
force  except  Christianity,  appears  in  a  far  smaller  proportion 
in  the  Code  than  in  the  human,  heathen  Digest  which  embodies 
the  science  of  life  as  it  existed  at  Rome  before  the  social  fabric 
was  affected  by  Christian  influences.      The  growing  impor- 
tance of  English  public  law  and  its  rapid  extension  throughout  English 
the  world  certainly  gives  reasonable  foundation  for  the  belief  contrasted, 
that  it  is  destined  to  take  on  the  same  kind  of  immortality. 
The  political  systems  of  all  the  Teutonic  nations,  as  they  ap- 
pear to  us  when  written  history  begins,  contained  the  germs 
of  the  representative  principle,  and  in  every  one  of  the  modern 
European  states  that   have  arisen  out  of  the  settlements 
made  by  the  Teutonic  nations  on  Roman  soil  a  serious  attempt 
has  at  some  time  been  made  in  the  direction  of  representative 

o  193 


194 


THE  SCIENCE  OF  JURISPRUDENCE 


In  England 
only  did 
representa- 
tive system 
survive. 


Rrst 

reproduced 
and  popu- 
larized in 
the  United 
States. 


government.  The  remarkable  fact  is  that  in  every  continen- 
tal state  in  which  such  an  attempt  was  made  it  ended  at  last 
in  failure  and  disappointment.  With  the  close  of  the  Middle 
Ages  every  effort  that  had  been  made  in  the  direction  of 
representative  government  upon  the  Continent  of  Europe 
was  brought  to  an  end.1  Then  it  was  that  the  free  constitu- 
tions of  Castile  and  Aragon  were  overthrown  by  Charles  V.  and 
Philip  II. ;  then  it  was  that  the  States-General  of  France  met 
for  the  last  time  (1614)  before  their  final  meeting  (1787)  upon 
the  eve  of  the  French  Revolution.2  In  England  only  among 
the  Teutonic  nations  did  the  representative  system  survive; 
in  England  only  has  the  representative  principle  —  which 
has  been  called  "a  Teutonic  invention"3  —  been  able  to 
maintain  a  continuous  existence.  In  that  way  the  English 
nation  has  been  able  to  hand  down  the  representative  prin- 
ciple from  the  barbarian  epoch  to  modern  times;  in  that 
way  England  has  become  the  "mother  of  parliaments,"  the 
teacher  of  the  science  of  representative  government  to  all  the 
world.  Since  the  beginning  of  the  French  Revolution  nearly 
all  the  states  of  Continental  Europe  have  organized  national 
assemblies  after  the  model  of  the  English  Parliament  in  a 
spirit  of  conscious  imitation.  But  the  typical  English  national 
assembly,  embodying  what  is  generally  known  as  the  bicam- 
eral system,  was  not  copied  into  the  Continental  European 
constitutions  until  it  had  first  been  reproduced  in  a  modified 
form  and  popularized  by  the  founders  of  the  federal  republic 

1  "  In  the  fourth  period,  on  the  Continent,  all  efforts  towards  a  representative 
system  have  failed  or  almost  entirely  disappeared ;  pure  monarchy  prevails. 
England  alone  decidedly  obtains  a  constitutional  government.  This  epoch  lasts 
from  the  sixteenth  century  to  the  French  Revolution."  Guizot,  History  of 
Representative  Government,  p.  258;  see  also  p.  15. 

*  See  Robertson,  Charles  V.  iii.  434  ;    Watson,  Philip  II.  iii.  223  ;  Prescott, 
Philip  II.,  first  chapter  of  book  vi.,  Sismondi,  xiii,  342 ;  Macaulay,  Hist,  of  Eng. 
i,  46-48. 

*  "It  is  the  great  political  invention  of  Texitonic  Europe,  the  one  form  of 
political  life  to  which  neither  Thucydides,  Aristotle,  nor  Polybius  ever  saw  more 
than  the  faintest  approach."     Freeman,  History  of  Federal  Government,  i.  67. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  195 

of  the  United  States.    In  the  several  colonial  commonwealths 
founded  by  English  settlers  upon  American  soil,  the  typical 
English  national  assembly  reappeared  in  an  embryonic  form 
as  the  predestined  product  of  a  natural  process  of  reproduction. 
These  assemblies  "were  not  formally  instituted,  but  grew  up 
by  themselves,  because  it  was  in  the  nature  of  Englishmen  to 
assemble."  1    A  graphic  statement  of  that  fact  may  be  found 
in  the  words  of  a  writer  upon  American  colonial  history  who 
tells  us  that  in  "this  year  (1619)  a  House  of  Burgesses  broke 
out  in  Virginia." 2    When  the  colonial  commonwealths  in 
America  severed  the  tie  of  political  dependence  which  bound 
them  to  the  mother  country,  and  rose  to  the  full  stature  of 
sovereign  states,  they,  with  a  single  exception,  organized  their 
several    legislatures  after  the  ancient  model  as    it    existed 
in  the  insular  system.    And  the  framers  of  the  federal  con- 
stitution of  1787,  abandoning  the  original  idea  of  a  federal 
assembly  consisting  of  a  single  chamber,  adopted  the  English 
system  of  two  chambers  in  the  form  in  which  that  system  had 
reappeared  in  the  several  states.3    Thus  rendered  popular 
by  its  successful  reproduction  in  American  constitutions,  state 
and  federal,  "the  British  political  model  was  followed  by 
France,  by  Spain  and  Portugal,  and  by  Holland  and  Belgium,  Then 
combined  in  the  kingdom  of  the  Netherlands;    and,  after  a  i^ 
long  interval,  by  Germany,  Italy,  and  Austria,"  *  and  finally 
by  Japan.     To  these  must  be  added  the  reproductions  on  a  Japan 
vast  scale  which  have  been  made  by  the  republics  of  Mexico,  Mexico, 
Central  and  South  America,  where,  in  some  instances,  single  south*  ' 
states  approach  very  closely,  so  far  as  their  constitutional  Amenca- 
law  is  concerned,  to  the  English  original  as  modified  by  Amer- 
ican innovations,  and,  in  others,  federal  states  are  organized 

1  Seeley,  The  Expansion  of  England,  p.  67. 

2  These  are  the  words  of  Hutchinson  quoted  by  Professor  Seeley,  Und.,  p.  67. 

3  See  Taylor,  The  Origin  and  Growth  of  the  English  Constitution  (8th  ed.), 
i.  44,  45,  71. 

4  Sir  Henry  Maine,  Popular  Government,  p.  13. 


196 


THE  SCIENCE  OF  JURISPRUDENCE 


enduring 
power, 


on  the  American  plan  with  certain  reservations.  The  Eng- 
lish constitutional  system  thus  stands  forth  as  the  accepted 
model  of  popular  government  throughout  the  civilized  world. 
Secret  of  its  When  an  attempt  is  made  to  ascertain  the  secret  of  its  enduring 
power,  it  is  to  be  found  in  the  fact  that  the  primitive  Teutonic 
fabric,  planted  in  the  practically  unincumbered  soil  of  an 
island  world,  took  such  deep  root  and  matured  so  perfectly 
before  it  was  transferred  to  other  lands  that  it  has  been  able 
to  survive  all  the  mutations  through  which  it  has  passed. 
The  system  of  archaic  law  transferred  to  Britain  by  a  group  of 
Teutonic  tribes,  between  the  middle  of  the  fifth  century  and 
the  end  of  the  sixth,  has  never  ceased  to  exist.  It  has  passed 
through  a  long  process  of  change  and  of  growth,  it  has  taken 
on  many  new  forms,  it  has  borne  great  fruit,  it  has  controlled 
the  destinies  of  a  nation,  "  which,  while  reforming  in  all  direc- 
tions, has  destroyed  nothing ;  which  has  preserved  both  its 
trees  and  its  constitution;  which  has  lopped  off  the  dead 
branches  without  leveling  the  trunk;  which  alone,  in  our 
days,  among  all  nations,  is  in  the  enjoyment  not  only  of  the 
present  but  the  past."  *  It  is,  however,  to  the  public  law 
of  England  that  such  observations  must  be  limited,  because 
England  cannot  fairly  be  said  to  have  an  indigenous  system 
of  private  law  all  her  own,  enriched  as  it  has  been,  in  all  of 
its  vital  parts,  from  Roman  sources.  In  the  effort  now  to  be 
made  to  outline  the  unbroken  development  of  English  public 
law  as  a  system,  the  growth  of  private  law  will  be  noticed 
only  so  far  as  it  may  be  inseverably  connected  with  the  main 
subject.  Except  in  states  which  have  written  constitutions, 
it  is  difficult  to  make  an  exact  delimitation  of  the  province 
of  law  that  should  be  called  constitutional.  It  is  difficult 
to  unfold  the  growth  of  Parliament  without  mentioning  the 
law  of  land  tenure;  "the  liberty  of  the  subject"  can  only 
be  defined  by  references  to  civil  and  criminal  procedure, 

1  Taine,  History  of  English  Literature,  ii.  517. 


English 

private  law 

enriched 

from 

Roman 

sources. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  197 

involving  trial  by  jury.     Without  attempting  to  establish  a  Only 
scientific  frontier,  an  honest  effort  will  be  made  not  to  en-  public  law 
croach  upon  the  field  of  English  private  law  except  where  it  outlined 
cannot  be  severed  from  public.     Some  encroachments  must, 
of  course,  be  made  at  certain  turning  points  at  which  it  will 
be  necessary  to  explain  how  the  entire  fabric  of  English  law 
was  profoundly  affected  by  successive  waves  of  Roman  in- 
fluence that  broke  upon  it  from  without. 

2.  In  the  preface  the  statement  has  been  made  that  Kemble,  Teutonic 
rejecting  every  suggestion  of  Roman  influence  at  the  outset,  English 
was  the  first  clearly  to  perceive  the  all-important  fact,  now  mstltutlons- 
generally  admitted,  that  the  national  life  of  the  English  people, 
both  natural  and  political,  began  with  the  coming  of  the  Teu- 
tonic invaders  who,   during  the  fifth  and  sixth  centuries, 
transferred  from  the  Continent  into  Britain  their  entire  scheme 
of  barbaric  life.      The  beginnings  of  the  English  constitution 
thus  become  a  part  of  the  brief  history  of  the  childhood  of 
the  whole  Teutonic  race  as  contained  in  those  terse  sketches 
of  the  ancient  freedom  drawn  by  Caesar  and  Tacitus.1    That  Sketches  of 
homogeneous  race,  although  possessed  of  a  common  system 
of  social  and  political  institutions,  was  nevertheless  broken 
up  into  an  endless  number  of  political  communities  or  states, 
which  stood  to  each  other  in  complete  political  isolation, 
except  when  united  in  temporary  confederacies.     In   their 
general  descriptions  of  the  German  people,  both  Caesar  and 
Tacitus  had  constantly  in  mind  the  existence  of  these  dis- 
connected states  into  which  the  race  as  a  whole  was  subdi- 
vided,2 and  which  each  termed  the  civitas,  with  the  explana- 

•  11  F      i  •  and  its  sub- 

tion  that  what  was  true  of  the  race  m  one  state  was  true  divisions, 
of  the  race  in  all  the  states,  excepting,  perhaps,  the  few  par- 
ticulars in  which  the  monarchical  states  differed  from  the  non- 
monarchical.    The  primary  bond  that  united  the  people  of 

1  De  Bella  Gallico,  vi.  23 ;  Germania,  cc.  8,  10,  12,  13,  14,  15,  19,  25,  30,  41. 

2  Ibid. 


198 


THE  SCIENCE  OF  JURISPRUDENCE 


Distinc- 
tions of 
rank  and 
possession 
of  land. 


Village 
community 
as  the  mark. 


a  civitas  was  a  personal  one ;  the  king  was  the  head  of  the  race, 
the  first  among  the  people,  and  not  the  king  of  a  particular 
region  or  area  of  territory.  The  largest  division  of  such  a 
state  is  usually  designated  in  Latin  pagus;  in  German,  gau  or 
gd;  in  Old  English,  scir  or  shire,1  terms  that  finally  gave  way 
on  the  Continent  to  the  word  "hundred."  The  hundreds 
were  subdivided  into  village  communities,  the  vici  of  Tacitus, 
who  says  that  Teutonic  society  embraced  four  ranks  or  classes : 
the  nobles,  simple  freemen,  freedmen,  and  slaves.2  Teutonic 
society  as  a  whole  rested  on  two  fundamental  conceptions: 
distinctions  of  rank  and  the  possession  of  land.  The  Germans 
dwelt  either  in  villages,  vici,  with  a  series  of  connected  build- 
ings, every  homestead  having  a  vacant  space  of  ground  about 
it,  or  apart  from  villages  in  isolated  homesteads,  wherever 
a  grove,  meadow,  or  spring  happened  to  attract  them.3  In 
a  famous  passage,  which  has  given  rise  to  much  learned  con- 
troversy, Tacitus  thus  describes  the  German  method  of  agri- 
culture: "The  fields  are  alternately  occupied  by  the  whole 
body  of  cultivators  according  to  their  number,  and  these 
they  afterward  divide  among  themselves  according  to  their 
individual  dignity."  *  The  extent  of  the  waste  lands  rendered 
this  method  of  partition  easy:  "They  changed  the  arable 
land  from  year  to  year,  and  there  is  land  to  spare." 5 
The  vicus  represents  the  Teutonic  form  of  the  village 
community,  and  constitutes  an  important  link  in  the  chain 
of  its  history.  The  portion  of  territory  occupied  by  the 
community  of  kindred  cultivators  is  termed  in  the  Ger- 
man muniments  the  "mark,"  —  something  marked  out  and 

1  Kemble,  Saxons  in  England,  i.  72 ;  Essays  in  Anglo-Saxon  Law,  p.  5. 

2  Germania,  cc.  7,  24,  25. 

*  Ibid.,  c.  16 ;  Waitz,  Deutsche  Verfassungsgeschichte,  i.  108. 

»  *  There  are  two  readings  of  this  very  difficult  passage.  See  G.  L.  von 
Maurer,  Einleitung,  pp.  5,  6 ;  Stubbs,  Select  Charters,  p.  59. 

*  "Arva  per  annos  mutant,  et  superest  ager."     Germania,  c.  26.     "It  im- 
plies no  more  than  this,  that  within  the  mark,  which  was  the  property  of  all, 
what  was  this  year  one  man's  corn-land,  might  the  next  be  another  man's 
fallow."     Kemble,  Saxons  in  England,  i.  40. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  199 

defined,  and  having  settled  boundaries.  The  mark  might 
be  located  either  in  the  forest  or  in  the  plain,  according 
to  the  nature  of  the  country  in  which  the  kindred  chanced 
to  fix  their  settlement;  and  its  border  land,  according 
to  circumstances,  consisted  either  of  wood  or  waste.1  The 
mark  was  divided  into  three  parts,  —  the  village,  the  arable 
lands,  and  the  common  or  waste  lands.  In  the  center  of  the 
mark  was  situated  the  village  in  which  the  markmen  dwelt 
in  their  homesteads,  surrounded  by  their  inclosures  and  out- 
buildings. Within  the  precinct  of  the  family  dwelling-place 
the  head  of  the  family  was  supreme.  No  one  had  the  right 
to  enter  there  except  himself  and  those  under  his  paternal 
authority.  It  could  not  be  invaded  even  by  officers  of  the 
law.2  The  possession  of  such  a  homestead  was  evidence  of 
the  fact  that  its  possessor  was  a  fully  qualified  member  of 
the  mark,  and  as  such  entitled  to  a  full  share  in  the  enjoyment 
of  the  arable,  the  pasture,  the  meadow,  and  waste  lands  be- 
longing to  the  community.3  The  arable  land  embraced  within 
the  mark  was  usually  divided  into  three  great  fields,  and  it 
was  so  arranged  that,  in  the  rotation  of  crops,  each  field  could 
lie  fallow  once  in  three  years.4  In  the  fields  under  cultivation 
in  any  given  year,  every  householder  had  allotted  to  him  his 
equal  share  which  he  cultivated  separately  by  his  own  labor^ 
together  with  that  of  his  sons  and  slaves.  But  he  was  required 
to  cultivate  according  to  fixed  rules ;  he  was  obliged  to  sow 
the  same  crop  with  the  rest  of  the  community  and  to  allow 
his  portion  of  the  uncultivated  field  to  lie  fallow  with  the  rest. 
The  rules  regulating  this  system  of  cultivation  were  both  mi- 
nute and  complicated.  The  woods,  pastures,  and  meadows 
embraced  within  the  mark  were  undivided,  and  enjoyed  in 

1  Konrad  Maurer,  in  Kritische  Ueberschau,  i.  67-72. 

2  Maine,  Village  Communities,  p.  78. 

3  G.  L.  v.  Maurer,  Dorfverfassung,  i.  61-65. 

4  Cf.  Laveleye,  Primitive  Property,  p.  110,  as  to  the  time  of  the  introduction 
of  this  triennial  rotation  of  crops. 


200  THE  SCIENCE  OF  JURISPRUDENCE 

The  mark  common,  and,  originally,  without  restriction.1  In  the  mark 
moot  was  transacted  all  the  business  that  arose  out  of  the 
system  of  common  cultivation,  and  out  of  the  enjoyment  of 
common  rights.  The  annual  allotment  of  the  arable  lands, 
the  rotation  of  crops,  the  choice  of  the  meadow,  the  admis- 
sion of  a  new  member  into  the  mark,  were  all  questions  de- 
termined in  the  mark  moot.2 

By  the  union  of  two  or  more  marks  was  formed  the  pagus, 
The  gau,  or  shire,  known  in  later  times  as  the  hundred,  —  a  word 

and  the  which,  in  some  form,  enters  into  all  of  the  Germanic  constitu- 
tions. When  the  written  history  of  the  primitive  Teutonic  state 
begins,  the  formative  period  has  ended ;  the  state  is  an  exist- 
ing organization,  occupying  definite  geographical  limits,  while 
the  original  units  out  of  whose  aggregation  it  arose  have  de- 
scended to  the  status  of  mere  divisions  and  subdivisions. 
Connected  in  that  way  with  the  occupation  of  definite  areas 
of  land,  these  divisions  and  subdivisions  represent  forms  of 
organization  not  only  personal  but  territorial.  The  hundred 
court,  like  all  other  Teutonic  courts,  was  a  popular  assembly, 
composed  of  all  the  freemen  resident  within  the  district. 
In  this  court  was  administered  regularly  and  frequently 
the  customary  law.3  It  met,  perhaps,  once  a  month,  and, 
in  addition  to  its  judicial  duties,  it  discharged  many  admin- 
istrative functions.  In  the  state  assembly  a  chief  was  chosen 
to  act  as  magistrate  in  each  hundred.  He  presided  in  the 
hundred  court  and  with  him  were  associated  a  hundred 
companions  or  assistants,  chosen  from  the  body  of  the  people, 
who  attended  to  give  their  advice  and  to  strengthen  the  hands 
of  justice.  As  by  the  union  of  two  or  more  marks  the  hundred 

1  Q.  L.  von  Maurer,  Markenverfassung,  p.  142. 

*  G.  L.  von  Maurer,  Einleitung,  pp.  141-150. 

'  "The  hundred,  and  the  principle  that  the  hundred  community  is  a  judicial 
body,  outlived  the  storms  of  the  folk  wanderings,  the  political  creations  of  Clovis, 
the  reforms  of  Charlemagne,  the  dissolution  of  the  Prankish  Empire,  the  dis- 
solution of  the  county  system. "  Sohm,  Die  frankische  Reichs-  und  Gerichtsver- 
fassung,  i.  541. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  201 

was  formed,  so  by  the  union  of  two  or  more  hundreds  the  state 
was  formed.  The  supreme  powers  of  the  state  were  vested 
in  a  state  assembly,  in  which  every  freeman  had  his  place.  The 
The  character  of  this  assembly  and  the  methods  of  its  pro- 
cedure  are  described  in  the  Germania  with  some  detail.  In 
the  assembly  of  the  hundred  the  people  met  in  council,  mainly 
for  the  purpose  of  judicial  administration;  in  the  state  as- 
sembly they  met  together  mainly  for  the  purpose  of  political 
action.  In  the  deliberation  of  the  assembled  people  every 
man  had  an  equal  voice ;  and  it  was  the  custom  for  all  to  ap- 
pear fully  armed.  The  state  assembly  met  at  fixed  and  stated 
intervals,  unless  sooner  called  together  by  some  sudden  emer- 
gency. When  the  people  had  assembled  in  sufficient  numbers 
the  business  began  after  silence  had  first  been  proclaimed 
by  the  priests,  who  possessed  the  coercive  power  to  enforce 
it.  The  business  presented  to  the  consideration  of  the  assem- 
bly was  all  prepared  beforehand  by  a  permanent  council  Permanent 
composed  of  the  magistrates,  principes,  who  decided  all  ^ncipes. 
minor  questions,  reserving  only  the  graver  ones  for  the  con- 
sideration of  the  whole  people.  The  debate  was  opened  by 
the  king  or  a  chief,  and  then  the  rest  were  heard  in  turn, 
according  to  age,  nobility  of  descent,  renown  in  war,  or  fame 
for  eloquence.  No  one  could  dictate  to  the  assembly, —  all 
could  persuade,  no  one  could  command.  When  a  proposition 
was  put  forward  to  which  the  people  were  opposed,  they  ex- 
pressed their  dissent  in  loud  murmurs ;  when  it  pleased  them, 
they  approved  by  the  clash  of  arms.  Here  the  magistrates 
were  chosen  to  administer  justice  in  the  marks  and  hundreds 
—  pagos  vicosque.1  In  the  state  assembly,  as  a  high  court  of  A  high 
justice,  accusations  were  exhibited  and  capital  offenses  prose-  justice. 
cuted.2  Those  guilty  of  treason  and  desertion  were  hanged; 
those  guilty  of  cowardice  and  unnatural  vices  were  suffocated 
in  the  mud.  All  other  offenses  could  be  atoned  for  by  fines, 

1  Tac.  Germania,  cc.  11,  12.  3  Sohm,  loc.  cit.,  p.  5. 


202 


THE  SCIENCE  OF  JURISPRUDENCE 


States, 
monarchical 
and  non- 
monarchical. 


Military  or- 
ganization. 


"  Families 

and 

affinities." 


Hun- 
dredors. 


a  part  of  which  was  paid  to  the  king  or  state,  and  a  part  to 
the  person  injured  or  to  his  family.  Tacitus  makes  it  clear 
that  each  state  had  its  own  constitution  and  that  they  were 
all  substantially  the  same  in  every  particular  except  one,  - 
in  some  of  the  states  kingship  prevailed,  in  others  it  did  not.1 
In  the  monarchical  states  the  kings  were  chosen  from  among 
those  of  noble  blood,  while  the  generals,  duces,  were  chosen 
from  among  those  who  possessed  the  greatest  military  fame. 
The  power  of  the  king  was  neither  arbitrary  nor  unlimited, 
while  the  general  commanded  more  by  exhibitions  of  valor 
than  by  positive  authority.  In  the  non-monarchical  states 
the  conception  of  national  unity  was  embodied  solely  in  the 
idea  of  the  civitas,  working  through  the  state  assembly  and 
through  the  magistrates  chosen  by  it  for  local  administration. 
So  closely  did  the  scheme  of  military  organization,  common 
to  all  the  Teutonic  tribes,  resemble  the  system  of  political 
organization  upon  which  the  state  was  constituted,  that  a 
comparison  has  happily  been  made  between  the  state  in  its 
territorial  aspect  and  the  army  in  permanent  encampment.2 
In  the  social  and  political  order  the  narrowest  form  of  local 
organization  was  represented  by  the  kindred  grouped  together 
in  village  communities.  In  one  of  the  elements  of  which  the 
army  was  composed  the  same  principle  of  cohesion  appeared. 
The  mass  of  the  people  fought  together  in  "families  and 
affinities  " ; 3  in  these  groups  of  kindred  appeared  upon  the 
battlefield  the  village  communities.  The  larger  divisions  of 
the  state  were  also  distinctly  represented.  Each  pagus  or 
hundred  contributed  its  quota  of  a  hundred  warriors  to  the 
host.  These  warriors,  chosen  from  the  flower  of  the  youth, 
constituted  the  infantry,  which  was  looked  upon  as  the  basis 
of  the  national  strength.4  The  third  element  of  the  army 
consisted  of  bands  of  professional  warriors,  united  to  a  leader 


1  Tac.  Germania,  cc.  7,  12,  25. 

2  Stubbs,  ConstitiUional  History,  i.  31. 


*  Tac.  Germania,  c.  7. 
«  Ibid.,  c.  6. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  203 

of  their  choice  in  a  close  and  peculiar  relation.  The  leader 
of  such  a  band  was  the  princeps;  his  warlike  followers,  the 
comites.  The  clanship,  or  comitatus,  thus  formed  had  its  divi-  The 
sions  of  rank  fixed  by  the  princeps.  In  peace  and  war  the 
comites  were  required  to  serve  the  princeps  even  to  the  death, 
and  in  turn  the  princeps  shared  his  spoils  with  them  and  gave 
them  bread.1  In  the  structure  of  the  comitatus  was  embedded 
the  germ  of  a  great  aftergrowth.  The  relation  of  lord  and  Lord  and 
vassal,  the  first  outcome  of  the  comitatus,  was  purely  a  personal 
one.  But  in  the  process  of  time,  when  the  lord  makes  a  grant 
of  land  to  his  vassal  in  consideration  of  past  services ;  and  upon 
further  consideration  that  the  vassal  will  hold  such  land  upon 
the  tenure  of  military  service,  a  new  relation  becomes  involved 
with  the  old  one.  When  the  two  relations  become  inseparably 
welded  together,  the  result  is  feudalism.2  The  host  was  thus  Feudalism, 
composed  of  three  distinct  elements:  the  main  body  of  the 
people  fighting  in  groups  united  by  the  tie  of  kinship, 
the  chosen  infantry  contributed  by  the  hundreds,  and  the 
bands  of  mounted  warriors,  each  under  the  leadership  of  its 
own  trusted  chief.  When  the  whole  people  were  in  arms  we 
have  "popular  assembly,  parliament,  law  court,  and  army 
in  one."  3  The  close  relationship  thus  existing  between  the 
systems  of  political  and  military  organization  is,  in  one  respect, 
worthy  of  special  consideration.  It  is  easy  to  understand  how 
an  army  of  invasion,  composed  either  of  the  whole  people 
of  a  state  or  of  a  single  subdivision,  embodied  in  its  very 
organization  the  primitive  political  system,  which  it  would 
naturally  reproduce,  in  whole  or  in  part,  wherever  a  settle- 
ment was  made  in  conquered  territory.  If  the  expedition  Reproduc- 
happened  to  be  composed  of  a  single  group  of  kindred,  upon  tu^onslin * 
a  settlement  being  made  in  a  new  land  its  members  would  tg^"61™1 

1  Ibid.,  cc.  13,  14.     See  Kemble's  chapter  (vii.)  on  "The  Noble  by  Service," 
Saxons  in  England,  i.  162.  a  Freeman,  Norman  Conquest,  i.  58-63. 

*  Essays  in  Anglo-Saxon  Law,  p.  8. 


204 


THE  SCIENCE  OF  JURISPRUDENCE 


Primitive 
rice  or 
kingdom. 


Repro- 
duction of 
civitas  of 
Caesar  and 
Tacitus. 


Period  of 
Teutonic 
conquest 
and  dimness 
of  its 
history. 


naturally  draw  together  upon  the  old  plan  in  a  village  com- 
munity.1 If  the  expedition  happened  to  be  composed  of 
many  groups,  united  under  a  common  leadership,  a  cluster  of 
village  communities  would  as  naturally  result.  After  the 
units  of  organization  had  thus  been  reproduced  and  brought 
into  contact  through  the  ordinary  law  of  federation,  first  the 
hundred  and  last  the  state  would  reappear.  In  Britain  the 
village  community  or  mark  is  represented  by  the  township;2 
the  pagus,  gd,  or  early  shire,  by  a  group  of  townships  united 
in  the  district  known  in  later  times  as  the  hundred;  while  a 
union  of  pagi  or  gds  is  the  primitive  rice  or  kingdom.  The 
political  structure  of  the  primitive  kingdom  would  therefore 
be  the  same,  whether  it  arose  out  of  the  settlement  of  a  single 
conquering  host  or  out  of  the  gradual  coalescence  of  smaller 
settlements  originally  isolated  and  independent.  It  is  all- 
important  for  the  student  of  English  constitutional  history 
firmly  to  grasp  the  process  through  which  the  civitas  of  Caesar 
and  Tacitus  reappeared  in  Britain  as  the  primitive  rice  or 
kingdom.  At  the  time  Tacitus  wrote  the  typical  Teutonic 
tribe  (civitas)  was  a  distinct  commonwealth,  the  largest  and 
highest  political  aggregate.  Not  until  nearly  a  hundred  years 
later  were  these  scattered  tribes  gathered  into  larger  wholes, 
—  into  nations.3 

3.  During  the  century  and  a  half  that  intervened  between 
the  middle  of  the  fifth  century  and  the  end  of  the  sixth  the 
Teutonic  settlements  in  Britain  were  made.  Within  that 


1  "And  as  they  fought  side  by  side  on  the  field,  so  they  dwelled  side  by  side 
on  the  soil.     Harling  abode  by  Harling,  and  Billing  by  Billing ;  and  each  'wick' 
or  'ham'  or  'stead'  or  'tun'  took  its  name  from  the  kinsmen  who  dwelled 
together  in  it."     Green,  History  of  the  English  People,  i.  10. 

2  John  Mitchell  Kemble,  in  his  chapter  on  "The  Mark"  (Saxons  in  England, 
2  vols.,  1849),  was  the  first  to  apply  to  English  institutions  the  fruits  of  German 
research  on  the  relations  of  early  land  tenure  and  settlement.     His  treatment 
of  the  subject  has  since  received  a  further  application  in  the  masterly  histories 
of  G.  L.  von  Maurer  and  Waitz,  whose  conclusions  have  been  utilized  and 
expanded  by  Stubbs  and  Freeman. 

*  Zeuss,  Die  Deutachen  und  die  Nachbarstamme,  pp.  303,  304. 


EXTERNAL  HISTORY  OF  ENGLISH  LA IV          205 

period  the  whole  island,  south  of  the  firths  of  Ford  and  Clyde, 
passed  from  the  possession  of  the  native  race  to  that  of  the 
conquerors,  with  the  serious  exception  of  a  broad  and  almost 
continuous  strip  of  country  extending  along  the  entire  western 
coast,  and  embracing  North  and  West  Wales,  Cumbia,  and 
Strathclyde.  Within  that  area  the  entire  native  or  Welsh 
population  withdrew,  with  whatever  of  civilization,  religion, 
or  law  they  had  derived  from  Rome.  In  that  part  of  the 
land  the  conquerors  made  their  own,  they  planted  the  entire 
fabric  of  Teutonic  life  —  social,  political,  and  heathen  — 
which  they  had  brought  with  them  in  their  blood  and  bone 
from  the  fatherland.  "While  the  Germans  of  Gaul,  Italy,  and 
Spain  became  Romans,  the  Saxons  retained  their  language, 
their  genius,  and  manners,  and  created  in  Britain  a  Germany  "A  Ger- 
outside  of  Germany."  *  The  invaders,  who  thus  established  outside  of 
a  new  nationality,  were  of  the  purest  Teutonic  type,  and  all 
spoke  dialects  of  the  Low  German.  Thus  transplanted  into 
Britain  the  history  of  the  English  race  begins  with  a  century 
and  a  half  of  unbroken  heathenism.  In  its  traditions  we  pos- 
sess a  record  of  their  earliest  thoughts  and  feelings,  and  in 
these  we  discover  the  sources  of  their  proud  self-consciousness, 
their  love  of  liberty  and  strife,  their  heroism,  and  their  power.2 
Out  of  the  fusion  of  the  Teutonic  settlements,  made  within 
the  limits  and  during  the  period  to  which  we  have  referred, 
has  grown  the  English  nation;  out  of  the  fusion  of  the  dia- 
lects spoken  in  those  settlements  has  grown  the  English  Ian-  Language 
guage;  out  of  the  primitive  political  institutions  embedded  tions 
in  those  settlements  has  grown  the  English  constitution.  It  ^ 
is  therefore  impossible  to  exaggerate  the  historic  importance 
of  this  period  of  conquest  and  settlement,  —  it  is  the  start- 

1  Taine,  History  of  English  Literature,  i.  50. 

2  "The  primary  characteristic  of  this  old  Northland  mythology  I  find  to  be 
impersonation  of  the  visible  workings  of  nature.   .  .  .     What  we  now  lecture  on 
as  science,  they  wondered  at  and  fell  down  in  awe  before  as  religion."     Car- 
lyle,  Heroes  and  Hero-Worship,  p.  16. 


206  THE  SCIENCE  OF  JURISPRUDENCE 

ing  point  of  eveiything.     Its  importance,  however,  is  fully 
equaled  by  its  obscurity.    A  period  of  historic  darkness  and 
legend  intervenes  between  the  overthrow  of  what  had  been 
the  Roman  province  and  the  beginning  of  the  new  Teutonic 
society.    And  the  difficulties  which  thus  arise  are  greatly 
increased  by  the  further  fact  that  such  light  as  we  do  possess 
concerning  the  period  that  follows  is  of  the  dimmest  and  most 
chasm  that   uncertain  character.     How  to  bridge  this  chasm,  dividing 
from  the       tne  old  from  the  new,  is  the  most  difficult  problem  in  English 
new.  history.     The  first  step  in  its  solution  was  taken  when,  in 

the  preceding  section,  an  examination  was  made  of  the  primi- 
tive Teutonic  constitution  as  it  appeared  in  the  homeland 
at  the  end  of  the  first  century.  It  was,  however,  three  cen- 
turies and  a  half  after  that  time  before  the  migrations  into 
Britain  began.  While  it  is  impossible  to  determine  just  what 
amount  of  development  took  place  in  the  interval,  there  is 
no  reason  to  suppose,  in  the  light  of  the  later  evidence,  that 
any  material  advance  was  made  in  the  direction  of  civilization. 
History  As  to  the  history  of  the  conquest  itself,  the  written  evidence 
conquest  consists  of  a  few  scanty  and  uncertain  fragments.  Upon  the 
part  of  the  conquered  we  have  only  the  Historia  and  Epistola 
of  Gildas,  really  a  single  work,  written  probably  about  the  year 
560.1  Upon  the  part  of  the  conquerors  we  have,  in  the  open- 
ing of  the  invaluable  compilation  generally  known  as  the 
English  Chronicle,  much  that  is  valuable  in  regard  to  the 
conquests  of  Kent,  Sussex,  and  Wessex,  intermixed,  no  doubt, 
with  much  that  is  mythical.2  As  to  the  conquests  of  Mid 
Britain,  or  the  eastern  coast,  there  is  no  written  account  from 
either  side ;  while  the  fragment  from  the  Annals  of  Northum- 


1  See  Stubbs  and  Haddan,  Councils  of  Britain,  i.  44 ;   Skene,  Celtic  Scotland, 
i.  116  n. 

2  As  to  the  historic  value  of  the  traditional  account  of  the  English  conquest 
of  Britain,  as  contained  in  the  English  Chronicle,  see  Freeman,  Norman  Con- 
quest, i.  7,  and  Dr.  Guest,  Early  English  Settlements,  in  Salisbury  volume  of  the 
Transactions  of  the  Archaeological  Institute. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  207 

bria,  embodied  in  the  later  compilation  which  bears  the  name 
of  Nennius,  alone  throws  light  upon  the  conquest  of  the  North. 
There  is  neither  record  nor  tradition  to  guide  us  as  to  the  man- 
ner in  which  the  country  was  parceled  out  among  the  con- 
querors; and  only  by  the  aid  of  local  nomenclature,  and  by 
the  surviving  traces  of  the  older  life  embedded  in  the  customary 
law,  can  be  determined  the  forms  in  which  the  first  settle-  Forms  of 
ments  were  made  upon  the  conquered  soil.  But  at  the  mo- 


ment  when  the  period  of  conquests  ends,  Christianity  begins, 

and  from  its  introduction  the  committing  of  the  customary  law 

to  writing  appears  to  have  begun.1    Of  the  existing  laws,  those  Early  laws. 

of  Aethelberht,  Hlothere  and  Eadric,  Wihtred,  Ine,  Eadward 

the  Elder,  Aethelstan,  Eadmund,  and  Eadgar  are  mainly  in 

the  nature  of  amendments  of  custom  ;  while  those  of  Aelfred, 

Aethelred,  Cnut,  and  those  which  bear  the  name  of  Eadward 

the  Confessor,  aspire  to  the  character  of  codes.2    Just  before 

the  middle  of  the  eighth  century  we  have  the  Ecclesiastical 

History  of  Baeda,  from  which  is  derived  the  only  substantial  Baeda's 

account  of  the  century  and  a  half  which  followed  the  coming 

of  Augustine.     To  these  imperfect  records  have  been  added 

the  fruits  of  the  most  careful  and  exhaustive  archaeological 

and  geographical  research.     Even  the  physical  conformation 

of  the  conquered  territory  has  been  minutely  examined  as  one 

of  the  surest  of  documents  bearing  upon  the  history  of  the 

conquest  itself.3 

The  period  of  piratical  visitation  —  which  began  when  the  Period  of 
freebooters  from  the  north  appeared  in  the  Channel  as  mere 
plunderers  who  simply  came  to  harry  the  coast  and  then  to 
sail  away  again  —  gave  way  about  the  middle  of  the  fifth 

1  The  promulgation  of  the  laws  of  Aethelberht  took  place  at  some  time  between 
the  coming  of  Augustine  in  596  and  his  death  in  605.  Baeda  says  these  laws 
were  enacted  "cum  consilio  sapientium."  Hist.  Eccl.  ii.  5. 

a  Select  Charters,  p.  60;  Thorpe,  Ancient  Laws  and  Institutes  of  the  Anglo- 
Saxons. 

*  Cf.  Works  of  Dr.  Guest,  contained  in  the  volumes  of  Transactions  of  the 
Archaeological  Institute,  and  Green,  Making  of  England. 


208 


THE  SCIENCE  OF  JURISPRUDENCE 


Bit  by  bit 
the  land 
was  won. 


Elements 
of  political 
life  in  the 
host. 


century  to  a  period  of  conquest  and  settlement.  For  a  century 
and  a  half  after  that  time  the  coming  of  the  Teutonic  tribes 
into  Britain  assumed  the  form  of  a  migration.  All  the  evi- 
dence tends  to  show  that  the  emigrants  came  in  disconnected 
bands,  more  or  less  numerous,  each  under  its  own  leader  or 
ealdorman,  who  singled  out  some  particular  section  of  coun- 
try for  conquest  and  settlement.  The  fact  that  the  invaders 
were  compelled  to  cross  the  sea  in  ships,  capable  of  transport- 
ing only  small  bodies  of  men,  precludes  the  idea  of  invading 
hordes  by  which  the  whole  land  could  be  suddenly  overrun. 
The  weakness  of  the  attack,  and  the  fierceness  with  which  it 
was  resisted,  were  the  dominant  causes  that  determined  the 
character  of  the  conquest  itself.  By  dint  of  hard  fighting, 
bit  by  bit,  district  by  district,  the  land  was  won.  As  we  may 
happen  to  accept  one  or  the  other  of  the  two  leading  theories 
that  exist  as  to  the  manner  in  which  the  land  was  originally 
distributed,  the  conclusion  may  be  reached  either  that  the 
invaders  divided  the  land  according  to  fixed  rules  as  they 
advanced  or  that,  after  the  first  period  of  struggle  was  over, 
a  rearrangement  took  place  according  to  established  forms. 
No  matter  which  theory  be  the  true  one,  as  to  the  broader 
aspects  of  the  distribution,  the  fact  remains  that  the  invaders 
did  settle  down  upon  the  land  in  marks  or  village  communities, 
and  did  possess  it  according  to  the  principles  of  ownership 
which  that  system  represented.1  The  Teutonic  host  not  only 
embodied  within  itself  all  the  elements  of  political  life,  but 
its  very  organization  presented  the  most  natural  scheme  of 
allotment  upon  which  a  division  of  the  land  could  be  made. 
The  clans  of  kindred  warriors  represented  the  village  com- 
munities; the  hundreds  of  warriors,  the  pagi  or  gds;  while 

1  To  Kemble  belongs  the  credit  of  being  the  first  to  apply  the  results  of 
German  research  into  the  mark  system  to  the  history  of  English  institutions. 
See  ch.  ii.  on  "The  Mark,"  and  ch.  iii.  on  "The  Ga  or  Scir,"  Saxons  in  England, 
vol.  i.  See  also  Morier,  Essay  on  Land  Tenure  (Macmillan,  1870)  ;  Nasse's 
treatise,  On  the  Agricultural  Community  of  the  Middle  Ages,  Ouvrey's  trans. 
(Macmillan,  1871) ;  Digby,  Law  of  Real  Property,  pp.  4-8. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  209 

the  host  as  a  whole  was  in  fact  the  state  assembly,  not  in 
council  but  in  action,  —  the  whole  people  in  arms.  When, 
therefore,  the  conquering  host  settled  down  upon  a  definite 
area  of  land,  the  state  reappeared  as  a  necessary  consequence. 
Or  it  may  have  been  that  the  invaders  often  came  in  numbers 
only  sufficient  to  constitute  a  single  group,  or  even  one  village 
community.  Out  of  the  union  of  such  communities  arose  gas 
or  shires,  which  finally  became  organized  into  states  or  king- 
doms. In  Britain  the  village  community  or  mark  is  repre- 
sented by  the  township  ;  1  the  pagus,  gd,  or  shire,  by  a  group  Township 
of  townships  united  in  the  district  known  in  later  times  as  the  hundred. 
hundred  ;  2  while  a  union  of  pagi  or  gas  is  the  primitive  rice 
or  kingdom.  The  political  structure  of  the  primitive  state 
would  therefore  be  the  same  whether  it  arose  out  of  the  settle- 
ment of  a  single  conquering  host  or  out  of  the  gradual  coales- 
cence of  smaller  settlements  originally  isolated  and  inde- 
pendent. 

4.   Before  the  historic  period  begins  the  petty  states  or  primitive 
kingdoms  into  which  the   settlers   originally  grouped  them- 


selves   had   ceased   to   exist   as  independent  communities;  kingdoms- 
they  had  become  bound  up  in  the  larger  aggregates  generally 
known  as  the  heptarchic  kingdoms.     It  is  possible,  however, 
from  that  condition  of  things  to  reason  back  and  to  determine 
with  reasonable  certainty  the  structure  of  these  early  king- 
doms before  the  process  of  aggregation  began.     The  later 
evidence  justifies  the  assumption,  which  will  be  adhered  to  Early 
throughout,  that  these  early  or  primitive  kingdoms  were 


reproductions,  in  every  material  particular,  of  the  Continental  ti.on  of 
Teutonic  states,  —  the  civitates  of  Caesar  and  Tacitus.3    In 

1  Maine,  Village  Communities,  p.  10. 

2  "From  the  first  the  township  or  village  community  must  have  been  re- 
garded as  forming  a  part  of  the  larger  aggregate,  the  hundred.  "     Digby,  Law  of 
Real  Property,  p.  7.     That  aggregate  was  the  early  shire  and  later  hundred. 
Essays  in  Anglo-Saxon  Law,  p.  19. 

*  "The  civitas  or  populus  of  Tacitus,  the  union  of  several  pagi,  is  in  Anglo- 
Saxon  history  the  rice  or  kingdom."     Stubbs,  Constitutional  History,  i.  119. 


210  THE  SCIENCE  OF  JURISPRUDENCE 

tun  moot  as  in  mark  moot  the  assembled  villages  met  to 
regulate  their  own  local  and  agricultural  concerns;  in  the 
gemot  or  meeting  of  all  the  freemen  resident  within  the  pagus 
or  early  shire,  we  have  in  fact,  if  not  in  name,  the  hundred 
court  of  the  Continent;  while  the  primitive  state  assembly 
is  the  folk  moot,  the  meeting  of  the  whole  people  in  arms. 
By  adhering  firmly  to  this  conception  of  the  structure  of  the 
petty  states,  or  early  kingdoms,  as  they  will  be  called,  into 
which  the  conquerors  originally  grouped  themselves,  it  will 
be  possible  hereafter  the  more  clearly  to  explain  the  historical 
origin  and  structure  of  the  various  divisions  and  subdivisions 
which  appear  in  the  composition  of  the  consolidated  king- 
dom of  England  after  the  work  of  aggregation  has  been  finally 
accomplished. 

Romano-          The  whole  fabric  of  the  new  society,  which  completely 
passed  away  displaced  within  certain  limits  the  older  Celtic  society,  was 
purely  Teutonic.     Its  language  was  made  up  of  a  set  of  dia- 
limite.          lects  of  the  Low  German ;  the  only  religion  which  it  possessed 
was  the  religion  of  Woden;    its  only  conception  of  law  and 
government  was  a  purely  Teutonic  conception.     The  witness 
of  language,  of  religion,  and  of  law  all  point  to  the  one  irre- 
sistible conclusion,  that  within  the  limits  which  the  conquerors 
made  their  own  while  they  were  still  heathen  the  whole  fabric 
of  Romano-British  life  passed  away.1    And  this  conclusion  is 
Fate  of         greatly  strengthened  by  the  fate  of  the  Roman  cities.     The 
Sties'"1         German  instinct  was  averse  to  dwelling  within  the  confines 
of  walled  cities;    in  the  woods  and  in  the  plain  the  Ger- 
man made  his  home;  his  boundaries  were  the  boundaries 
of  the  mark;    his  walls,  the  mound  and  quick-set  hedge  by 
which  his  "tun"  or  village  was  surrounded.    The  abandoned 
Roman  cities  went  to  ruin  and  decay,  and  with  them  perished 
the  system  of  municipal  life  which  they  embodied.     In  the 

1  "The  proofs  of  such  a  displacement  lie  less  in  isolated  passages  from  chron- 
icle or  history  than  in  the  broad  features  of  the  conquest  itself."  Green, 
Making  of  England,  p.  132. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  211 

course  of  time,  it  is  true,  the  sites  of  many  of  these  deserted 
cities  were  reoccupied  by  the  conquerors  ;  but  the  new  system 
of  municipal  life  which  they  established  had  no  connection  Teutonic 
with  the  old,  —  it  was  simply  the  "tun"  or  village  life  in  a  o^ganlza- 
higher  state  of  organization.1    But  it  will  not  suffice  for  us  tlon' 
simply  to  examine  the  broader  aspects  of  the  new  society; 
we  must  descend  to  details,  and  examine  the  specific  forms  in 
which  the  older  life  reappears  when  the  work  of  conquest  is 
done. 

The  political  and  social  life  of  the  founders  in  the  fatherland  Distinctions 
rested  upon  two  fundamental  conceptions,  —  distinctions  of  1 


rank  and  the  possession  of  land,  —  two  cardinal  ideas  which  of  land" 
are  fully  developed  in  the  life  of  the  village  communities 
when  Teutonic  history  begins.  The  original  basis  of  land 
ownership  was  freedom;  the  freeman  alone  could  possess 
family  land  2  within  the  village  ;  and  upon  this  possession, 
the  badge  of  his  freedom,  depended  his  right  to  participate 
in  the  enjoyment  of  the  common  lands,  the  property  of  the 
whole  community.8  The  free  were  divided  into  two  classes,  Free 
—  nobles  and  simple  freemen;  while  the  unfree  consisted  of 
agrarian  dependents,  who  occupied  their  masters'  lands  upon 
the  basis  of  a  fixed  contribution,  and  of  slaves  whose  condition 
represented  the  full  measure  of  servitude.4  In  the  settlements 
made  by  the  kindred  warriors  in  Britain,  the  primitive  divi- 
sions of  rank  distinctly  reappear.  In  Old-English  phrase 
the  noble  is  the  eorl,  the  simple  freeman  the  ceorl;  while 
beneath  eorl  and  ceorl  stand  the  unfree,  representing  different 
degrees  of  servitude.  The  ceorl  in  the  new  society  is  the  Ceorl. 
basis  of  the  village  life,  just  as  the  simple  freemen  was  the 
basis  in  the  older  society.  He  is  the  "waepned  man,"  the 

1  As  to  the  lack  of  continuity  in  Britain  of  Roman  municipal  institutions, 
see  Kemble,  Saxons  in  England,  vol.  ii.,  ch.  vii.,  "The  Towns." 

2  For  a  definition  of  family  land,  see  Essays  in  Anglo-Saxon  Law,  p.  68. 

*  G.  L.  von  Maurer,  Markenverfassung,  pp.  50-62  ;  Dorfverfassung,  pp.  61-65  ; 
Einleitung,  pp.  72  et  sq.  *  Tac.  Germania,  cc.  7,  24,  25. 


212  THE  SCIENCE  OF  JURISPRUDENCE 

"free-necked  man,"  whose  neck  has  never  been  bent  by  a 
master.  Within  the  village  community  he  possesses  the 
"ethel"  or  "alod,"1  which  entitles  him  to  the  enjoyment 
of  all  rights  to  which  any  other  free  member  of  the  community 
is  entitled.  But  in  the  host  and  in  the  assembly  he  is  simply 
a  unit  with  no  distinction  of  birth  to  lift  him  above  his  fellows. 

Solas.  In  the  new  life  as  in  the  old,  the  eolas  or  aethelings  are  the 
highest  order  of  freemen,  distinguished  above  the  rest  of  their 
class  by  reason  of  their  noble  blood  and  by  the  possession  of 
large  estates.2  The  eolas,  the  nobles  of  the  first  settlements, 
and  their  descendants  represent  the  ancient  nobility  of  im- 
memorial descent  as  distinguished  from  the  later  nobility 
by  service.  The  unfree  among  the  settlers  in  Britain  may 

Laet».  be  grouped  in  two  broad  divisions,  —  laets  and  slaves.  The 
laet  was  a  dependent  cultivator,  whose  dependence  resulted 
from  the  fact  that  he  was  a  landless  man;  he  had  no  share 
in  the  land  of  the  community;  he  was  the  cultivator  of  the 
land  of  another.  As  to  the  lord  whose  land  he  tilled  he  was 
unfree,  but,  save  as  against  him,  his  life  and  limb  were  as  secure 
as  the  ceorPs.  He  had  his  own  house  and  home,  and  the  lord 
could  not  take  from  him  the  land  he  tilled  as  long  as  he  paid 
his  rent  in  labor  or  in  kind,  and  performed  such  other  services 
as  were  due  to  his  lord.  But  he  could  leave  neither  land  nor 
lord  at  his  will;  and,  as  he  owned  no  land  in  the  village  com- 
munity, he  had  originally  no  part  or  place  in  its  political  life.8 

Slaves.  Below  the  laets  were  the  slaves,  whose  condition  represented 
the  full  measure  of  servitude, —  a  servitude  as  abject  as  the 
slavery  described  in  the  Germania.  Slavery  might  result 
from  one  of  many  causes,  and  was  either  casu  or  natura. 
The  lowest  condition  of  slavery  was  represented  by  the  theow, 

1  The  terms  "  ethel  "or  "  alod  "  are  usually  employed  to  describe  land  held  in 
full  ownership.  Konrad  Maurer,  Kritische  Ueberschau,  i.  97 ;  Saxons  in  Eng- 
land, i.  88,  "The  ethel,  hid,  or  alod." 

3  Green,  Making  of  England,  p.  174. 

3  See  Essays  in  Anglo-Saxon  Law,  p.  86. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  213 

who  was  either  wealh  —  that  is,  of  British  extraction  —  or 
of  the  Teutonic  stock,  and  a  descendant  of  the  slaves  of  the 
first  settlers.  The  wite-theow  was  the  man  who  could  not  pay 
his  debts,  or  who  had  lost  his  freedom  through  crime,  and  whose 
kindred  would  not  make  up  the  fine  for  him.  The  esne  served 
either  for  hire  or  for  land,  and  may  have  been  a  little  better 
off  than  the  theow.  Then  there  were  the  men  who,  compelled 
by  famine,  "bowed  their  heads  for  meat  in  the  evil  days."  * 
But  no  matter  what  the  cause  from  which  the  slavery  may 
have  resulted,  in  contemplation  of  law  the  slave  was  the  mere 
chattel  of  his  lord,  a  part  of  his  stock,  for  whose  wrongdoing 
he  answered  as  for  the  mischief  done  by  his  cattle.  The  slave 
had  no  legal  rights,  no  wergild,  no  credibility  as  a  witness,  NO  legal 
and  a  wrong  done  to  him  was  only  an  offense  against  his  ^f^nd"0 
master.  At  his  death  his  status  descended  to  his  children; 
and  even  the  children  of  a  freeman  by  a  slave  mother  were 
slaves  according  to  the  old  English  proverb,  "  Mine  is  the  calf 
that  is  born  of  my  cow."  But  the  dictates  of  humanity  se-  Practice 
cured  to  the  slaves  some  rights  which  the  theory  of  the  law  than  theory, 
denied  him.  His  two  loaves  a  day  and  his  holidays  were 
secured  to  him,  and  out  of  his  savings,  which  in  theory  at 
least  belonged  to  his  master,  he  was  allowed  to  purchase  his 
own  freedom  and  that  of  his  children.2  The  primitive  Teu-  village  life 
tonic  village  community  in  Britain  represented,  therefore, 
a  settlement  made  up  of  eorls  and  ceorls,  with  their  unfree 
dependents,  who  stood,  in  relation  to  their  lords,  in  different 
degrees  of  servitude.  The  political  power  of  such  a  commu- 
nity was  embodied  in  the  village  moot,  in  which  the  land- 
owning freemen  met  together  and  passed  all  laws,  or  rather 
by-laws,  necessary  for  the  ordering  of  their  village  and  agri- 
cultural life.  The  title  to  the  territory  of  the  free  community 

1  That  form  of  involuntary  servitude  was  sanctioned  by  the  church.     Cf. 
Theodore,  Penitential;   Stubbs  and  Haddan,  Councils,  iii.  202. 

2  Kemble,  Codex  Diplomaticus,  mcccli.  and  dccccxxxiv. 


214 


THE  SCIENCE  OF  JURISPRUDENCE 


Homestead 
Incidents 


Growth  of 


invading 


Heretoga  or 


as  a  whole  was  vested  in  the  community  itself;  while  within 
it  each  villager  possessed  his  homestead  and  the  right  to  a 
definite  portion  of  arable  land,  which  entitled  him  to  the  en- 
joyment of  all  common  rights.  With  this  conception  of  the 
primitive  free  community  clearly  before  us,  it  will  be  possible 
to  trace  with  more  distinctness  the  development  of  an  insti- 
tution which  grew  up  alongside  of  and  at  last  overshadowed 
the  miniature  democracy.  But  in  order  fully  to  grasp  the 
nature  of  this  institution  and  its  development,  an  examina- 
tion must  be  made  into  the  nature  of  the  new  kingship  to 
which  the  migration  and  conquest  gave  birth. 

From  the  Germania  we  learn  that  in  the  fatherland  king- 
ship  prevailed  in  some  of  the  states,  while  in  others  it  did  not.1 
That  kingship  did  not  prevail  among  the  Saxons  is  affirma- 
tively stated  in  Baeda  ;  2  and  the  highest  authorities  agree  in 
the  inference  that  the  other  tribes  that  joined  in  the  migra- 
tion  did  not  differ  from  the  Saxons  in  that  respect.3  Every 
band  of  invaders,  great  or  small,  that  came  to  engage  in  the 
work  of  conquest  was  necessarily  obliged  to  trust  its  fortunes 
to  some  leader  or  chieftain  of  its  choice.  According  to  the 
Chronicle,  the  chieftains  who  led  the  first  expeditions  into 
Britain  bore  no  higher  title  than  heretoga  or  ealdorman. 
In  449  A.D.  the  Jutish  war  bands  landed  under  the  command 
of  two  heretogas,  Hengist  and  Horsa,  and  in  455  A.D.  Horsa 
was  slain,  and  Hengist  and  Aesc,  his  son,  obtained  the  king- 
dom. In  495  A.D.  two  ealdormen  came  to  Britain,  Cerdic  and 
Cynric  his  son;  and  in  519  A.D.  they  became  the  kings  of  the 
West  Saxons.  The  evidence  justifies  the  conclusion  that  each 
expedition  was  led  by  a  chosen  chieftain,  who  might  bear  as 
a  civil  ruler  the  title  of  ealdorman,  while  as  war  leader  he 

1  Tac.  Germania.,  cc.  7,  12,  25. 

*  Hist.  Eccl.  v.  10.     "Non  enim  habent  regem  iidem  Antiqui  Saxones,  sed 
satrapus  plurimos  suae  genti  praepositos." 

*  Royalty  among  the  conquerors  of  Britain  was  one  of  the  results  of  the 
migration.     Freeman,  Norman  Conquest,  i.  51. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  215 

might  bear  the  title  of  heretoga.    But  as  the  conquest  ad- 
vanced, and  as  definite  districts  of  country  were  permanently 
secured,  and  as  the  various  groups  of  conquerors  within  such 
districts  felt  the  need  of  drawing  together  under  a  permanent 
instead  of  a  temporary  leadership,  the  ealdorman  was  ad- 
vanced to  the  dignity  of  a  king  who  could  represent  in  his  Ealdorman 
person  the  unity  of  a  new  national  life.     In  this  wise  a  brood  king™' 
of  petty  kings  grew  up  that  continued  to  survive  for  centuries. 
In  order  to  attach  the  idea  of  permanency  to  the  new  king- 
ship, the  name  of  the  son  was  often  associated  with  that  of 
the  father  as  a  recognition  of  the  hereditary  principle ;  while, 
in  order  to  impart  sanctity  to  the  person  of  the  new  king, 
fable  at  once  traced  his  descent  in  an  unbroken  line  from 
Woden.     This  recognition  of  the  hereditary  principle  was  Blending  of 
attended  and  modified,  however,  by  the  older  principle  of  tary  with* 
election.1    The  right  to  the  throne  might  be  vested  by  the  JJj^^8 
original  choice  in  one  royal  house,  but  the  question  as  to  which 
member  of  that  house  should  receive  the  succession  when 
a  vacancy  occurred,  was  one  the   national  assembly  alone 
could  determine.     For  centuries  the  right  to  reject  the  im- 
mediate heir  of  the  last  king,  in  favor  of  some  other  mem- 
ber of  the  same  house  more  competent  to  govern,  was  freely 
exercised.    How  far  the  power  and  dignity  of  a  king  exceeded 
that  of  an  ealdorman,  it  is  difficult  to  determine ;  but  it  is  quite 
clear  that  the  title  of  king  did  carry  with  it  an  advance  in 
both  respects.     It  is  probable  that  the  king  was  not  chosen 
until  a  group  of  war  bands,  each  under  its  own  ealdorman; 
had  united  in  the  formation  of  a  kingdom.     In  that  way  the 
king  was  advanced  to  the  supreme  command  and  to  national  Ealdorman 
authority,  while  the  ealdorman  descended  to  the  status  of  of  district, 
a  subordinate,  although  still  possessing  the  highest  command 
in  his  own  district. 

1  "The  elective  principle  is  the  safeguard  of  their  freedom ;  the  monarchical 
principle  is  the  condition  of  their  nationality."  Kemble,  Saxons  in  England, 
i.  137. 


216 


THE  SCIENCE  OF  JURISPRUDENCE 


Tribal 
sovereignty. 


Dignity  of 
kingship 
grew  as  the 
process  of 
aggregation 
advanced. 


The 
comitatua. 


The  fact  must  be  constantly  borne  in  mind  that  the  new 
king  was  the  king  of  a  nation,  the  leader  of  his  people,  the 
head  of  the  race,  and  not  the  king  of  a  country  and  lord  of 
the  soil.  The  idea  of  territorial  as  distinguished  from  tribal 
sovereignty  was  the  growth  of  later  times.1  In  war  the  king, 
as  leader  of  the  host,  possessed  supreme  command,  while  in 
peace  his  powers  were  coordinate  with  the  national  assem- 
bly, with  whose  concurrence  he  performed  all  important  acts. 
He  maintained  not  his  own  peace,  but  the  national  peace, 
and  executed  justice  on  the  breakers  of  it;  but  justice  was 
not  yet  the  king's  justice:  it  was  the  justice  of  the  village, 
the  hundred,  and  the  folk,  in  whose  moots  was  vested  ju- 
risdiction. As  the  process  of  aggregation  advanced,  as  the 
early  kingdoms  became  bound  up  in  the  seven  or  eight  hep- 
tarchic  kingdoms,  which  finally  united  under  the  rule  of  one 
royal  house,  the  institution  of  kingship  grew  with  each  ex- 
pansion of  territory.  As  an  heptarchic  king  rose  in  power 
and  importance  above  the  petty  royal  head  of  a  primitive 
state,  so  did  the  king  of  all  the  English  rise  in  power  and 
importance  above  an  heptarchic  king.  In  the  process  of 
aggregation  was  thus  involved  the  growth  of  kingship,  and 
in  the  growth  of  kingship  were  involved  all  the  elements  of 
constitutional  life. 

Reference  has  heretofore  been  made  to  the  structure  of  the 
comitatus,  the  personal  following  of  professional  warriors  who 
grouped  themselves  around  a  king  or  chief  in  a  strange 
relation  of  fidelity  and  dependence  that  rendered  them  a 
class  apart  from  the  body  of  the  people.  Each  chieftain  by 
whom  a  war  band  was  led  to  the  conquest  of  Britain  came 
attended  by  his  comites,  and  their  fortunes  advanced  together. 
In  return  for  their  fidelity  and  service  the  comites  expected 

'"Territorial  sovereignty — the  view  which  connects  sovereignty  with  a 
limited  portion  of  the  earth's  surface  —  was  distinctively  an  offshoot,  though 
a  tardy  one  of  feudalism."  Maine,  Ancient  Law,  p.  102.  See  also  Early  His- 
tory of  Institutions,  p.  73. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  217 

to  receive  from  their  chief  whatever  of  bounty  lay  in  his 
power  to  bestow;   but  it  was  a  part  of  his  absolute  duty  to 
supply  them  from  his  own  board  with  their  daily  bread. 
The  chief  therefore  becomes  in  Old  English  the  hlaford,  the  Thehiaford 
loaf  giver,  a  term  which,  by  an  entire  departure  from  its  °^^ 
original  meaning,  finally  softened  down  into  the  modern 
form  of  lord;   while  the  comes,  the  hlafaeta,  the  loaf  eater, 
becomes  the  gesiS,  gesith,  or  companion.    Under  these  names  The 
the  old  relations  at  first  appear.     The  right  upon  the  part  of 


the  king  to  maintain  a  body  of  gesiths  or  household  retainers 
has  been  called  a  very  jewel  in  the  crown;  but  this  right  was 
not  confined  to  kings  alone,  it  was  enjoyed  alike  by  all  the 
great  men  of  the  nation.1  As  kingship  advanced  in  power 
and  privilege,  kings  were  able,  of  course,  to  confer  upon  their 
dependents  a  status  and  emoluments  such  as  no  one  else 
could  bestow.  And  as  the  king  grew  in  power  and  impor- 
tance the  companion  or  gesith  soon  changed  his  original 
title  for  a  new  one  that  more  clearly  expressed  his  somewhat 
changed  relation.  He  became  the  thegn  or  servant  instead 
of  the  companion  of  his  lord.  In  this  way  originated  a  new 
nobility  by  service,  which  grew  and  widened  until  it  at  last  The 
absorbed  and  superseded  the  older  nobility  of  blood.  The  o/nobiuty 
ancient  eorl  passed  away  and  the  thegn  took  his  place.  The  by  servlce- 
status  of  the  thegn  materially  depended  upon  the  status  of 
his  lord.  As  a  king  stood  above  ealdorman  or  bishop,  so 
stood  the  king's  thegns  above  their  thegns.  The  king,  as 
the  representative  of  the  race,  conferred  upon  his  following, 
at  once  bodyguard  and  council,  not  only  dignity  and  impor- 
tance, but  substantial  benefits.  As  no  one  could  judge  a 
king's  thegn  but  his  lord,  the  royal  following  became  exempt 
from  the  jurisdiction  of  the  popular  tribunals.  The  greatest 

1  "The  difference  between  the  comites  of  the  princeps  and  the  household  of 
the  private  man  depends  fundamentally  only  on  the  public  and  political  position 
of  the  master."  Stubbs,  Constitutional  History,  i.  149,  150. 


218 


THE  SCIENCE  OF  JURISPRUDENCE 


Thegnhood 
grew  into 
central 
institution 
of  the  state. 


Ranks  ever 
open  to  class 
beneath  it. 


Relation  of 
lord  and 
man. 


Represented 
but  one 
element  of 
feudalism. 


boon,  however,  which  such  a  thegn  expected  his  lord  to  bestow, 
was  a  grant  of  land  out  of  the  public  domain,  which  the  king 
had  the  power  to  make  with  the  consent  of  the  witan.1  Upon 
estates  created  in  this  way  the  thegns  began  to  dwell,  and  thus 
ceased  to  be  members  of  their  master's  household.  And  so 
the  thegnhood  grew  into  a  territorial  nobility,2  into  the 
central  institution  of  the  state.  And  so  heavily  did  this 
institution,  involving  the  relation  of  lord  and  man,  press  upon 
the  whole  social  and  political  fabric,  that  it  finally  became 
a  settled  principle  that  every  man  should  have  a  lord  to  act 
as  his  protector  and  surety;  the  lordless  man  became  almost 
an  outlaw.  But  depressing  as  the  institution  of  thegnhood 
may  have  been  to  the  simple  freeman  as  a  class,  it  led  in  the 
end  to  the  firm  establishment  of  a  liberal  principle  of  ad- 
vancement that  has  lingered  at  the  root  of  English  society. 
The  ceorl  could  not  become  an  eorl  for  the  simple  reason  that 
"a  man  cannot  change  his  forefathers."  The  thegnhood, 
however,  rested  upon  more  elastic  principles;  it  was  not  an 
hereditary  caste,  but  an  aristocratic  class,  whose  ranks  were 
ever  open  to  members  from  the  class  beneath  it.  The  ceorl 
who  had  so  thriven  as  to  acquire  five  hides  of  land,  or  who 
had  been  sufficiently  successful  as  a  merchant,  could  become 
a  thegn.3 

The  most  important  outcome  of  the  comitatus,  from  which 
arose  this  new  nobility  by  service,  was  the  relation  of  lord 
and  man,  —  a  relation  at  first  purely  personal,  and  not  neces- 
sarily connected  with  the  holding  of  the  land.4  This  relation, 
therefore,  represented  but  one  element  of  feudalism,  which 
implied  not  only  the  mutual  relation  of  trust  and  fidelity 


1  Baeda  complains  that  in  his  day  so  much  of  the  folkland  was  bestowed 
upon  pseudo-monasteries  that  there  was  no  place  where  sons  of  nobles  or  veteran 
warriors  could  receive  a  grant.     Epi-st.  ad  Ecgbirhtum  Archiepiscopum ,  §11. 

2  As  to  the  growth  of  Frank  feudalism,  see  Waitz,  loc.  cit.  ii.  262. 
1  Creasy,  The  English  Constitution,  p.  42. 

4  Digby,  Law  of  Real  Property,  p.  21. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  219 

between  lord  and  vassal,  but  along  with  it  the  holding  of 
land  by  the  tenure  of  military  service  due  from  the  vassal  or 
tenant  to  the  lord  as  lord  of  the  fief.  From  the  earliest  times 
in  England  —  as  soon,  no  doubt,  as  the  idea  of  a  nation  as 
an  organized  political  community  had  become  fully  de- 
veloped —  the  obligation  of  military  service  for  the  protec- 
tion of  the  state  was  imposed  upon  the  holding  of  all  land  by 
freemen  as  a  necessary  burden.  This  obligation,  which  no 
landholder  could  escape,  was  embodied  in  the  inevitable 
trinoda  necessitous,  which  consisted  of  service  in  the  field  and 
in  the  repair  of  bridges  and  fortresses.1  But  this  service  was 
due  from  the  citizen  to  the  state  or  from  the  subject  to  the 
sovereign,  and  not  from  a  vassal  to  his  lord.  The  two  great 
elements  of  feudalism  —  the  relation  of  lord  and  man,  and 
the  holding  of  land  by  military  service  —  were  thus  embedded 
in  an  embryonic  form  in  English  institutions  from  the  very  Feudalism 
beginning.  But  -these  elements  never  became  inseparably 
welded  together  into  a  definite  and  harmonious  system  until 
after  the  Norman  conquest.2  Not  until  after  that  event  did 
the  relation  of  lord  and  man  fully  develop  into  the  technical 
relation  of  lord  and  tenant.3 

While  the  development  of  Germany  advanced  in  the  path  Early 
of  political  consolidation,  that  of  England  advanced  in  the 
path  of  political  confederation.  The  course  of  this  develop- 
ment  is  broken  into  two  distinct  and  well-defined  epochs: 
the  first,  embracing  the  drawing  together  of  the  early  king- 
doms into  the  seven  or  eight  aggregates  generally  known  as 
the  heptarchic  states;  the  second,  the  drawing  together  of 
the  heptarchic  states  into  the  one  united  kingdom  of  all  the 

1  "This  common  burden  was  the  trinoda  necessitas,  in  its  origin  required  of 
all  people,  and  not  resting  on  land,  and  therefore  not  the  subject  of  immunity." 
Essays  in  Anglo-Saxon  Law,  p.  61. 

2  Freeman,  Norman  Conquest,  i.  63. 

*  See  Digby  on  the  "Development  of  the  Idea  of  Tenure,"  Law  of  Real 
Property,  p.  37. 


220 


THE  SCIENCE  OF  JURISPRUDENCE 


and  tribal 
kings. 


Heptarchic 
kingdoms 
and  the 
witenage- 
mot. 


English  under  the  house  of  Cerdic.  It  will  not  be  necessary 
for  the  present  to  look  beyond  the  first  period,  during  which 
the  early  kingdoms  coalesced  in  the  formation  of  the  hep- 
tarchic  states.  In  the  structure  of  these  larger  aggregates 
one  fact  of  paramount  importance  stands  prominently  forth, 
and  that  is  that  the  early  kingdoms  descend  in  status  without 
a  sacrifice  of  their  autonomy;  they  preserve  their  ancient 
boundaries,  their  national  assemblies  or  folk  moots,  and  their 
tribal  kings.  The  kingdom  of  the  Mercians  in  Mid  Britain 
seems  to  have  been  a  mere  confederacy,  which  resulted  from 
a  gradual  union  of  smaller  states,  whose  kings  during  the 
early  days  still  continued  to  exist.  In  the  same  way  Wessex 
consisted  of  a  union  of  kindred  states,  each  having  its  own 
ealdorman  or  under  king.  From  the  Chronicle  we  learn  that 
five  West  Saxon  kings  appeared  at  one  time  in  a  single  battle.1 
East  Anglia  was  made  up  of  two  settlements,  the  North  and 
South  Folk,  whose  names  are  still  preserved  in  the  shires  of 
Norfolk  and  Suffolk,  into  which  the  kingdom  was  finally 
divided.  Kent,  like  East  Anglia,  was  probably  composed 
of  two  tribal  divisions  originally  distinct;  and  in  the  eighth 
century  it  broke  up  into  the  kingdoms  of  East  and  West 
Kentings,  probably  upon  the  lines  of  the  earlier  states.2 
And  only  after  a  long  period  of  struggle  did  Bernicia  and 
Deira  finally  unite  in  the  kingdom  of  Northumbria.3 

Such  being  the  principle  upon  which  the  early  kingdoms 
coalesced  in  the  formation  of  the  heptarchic  states,  the  ques- 
tion naturally  arises  as  to  the  form  and  structure  of  the 
national  assemblies  of  these  aggregated  states.  The  primitive 
Teutonic  conception  of  an  assembly,  whether  local  or  national, 
rested  upon  one  simple  idea,  and  that  was  that  every  free- 

1  E.  Chron.  a.  626. 

8  "It  is  probable  that  from  the  earliest  times  Kent  had  at  least  two  kings, 
whose  capitals  were  respectively  Canterbury  and  Rochester,  the  seat  of  the  two 
bishoprics."  Kemble,  Saxons  in  England,  i.  148. 

3  See  Green,  Making  of  England,  ch.  vi. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  221 

man  resident  within  a  state  or  district  had  the  right  to  appear 

and  represent  himself  in  the  assembly  or  court  of  such  state 

or  district.     In  the  composition  of  the  assemblies  of  the 

early  kingdoms  there  was  no  departure  from  primitive  tradi- 

tions.    The  townsmen  met  in  tun  moot,  the  freemen  of  the 

shire  in  shire  moot,  while  the  whole  people  composed  the 

state  assembly  or   folk  moot.    And    even  after  the  early 

kingdoms  had  become  bound  up  in  larger  aggregates,  they 

still  firmly  adhered  to  the  original  principle,  so  far  as  the 

composition  of  their  own  assemblies  was  concerned,  without 

extending  it  to  the  national  assemblies  of  the  aggregated 

states.    That  is  to  say,  if  the  right  of  all  the  people  to  attend 

in  the  assemblies  of  the  aggregated  or  heptarchic  states 

continued  to  exist  in  theory,  it  was  not  exercised  in  fact. 

The  national  assembly  of  an  heptarchic  state  was  not  a  folk  Heptarchic 

moot,  but  a  witenagemot;    it  was  not  a  great  tumultuary 

assembly  composed  of  the  whole  body  of  the  people,  but  a 


small  assembly  composed  of  the  great  and  wise  men  of  the  aristocratic 

bodies. 

land,  who  met  as  councilors  of  the  king.    The  only  con- 
sistent theory  upon  which  this  changed  condition  of  things 
can  be  explained  is,  that  as  the  process  of  aggregation  ad- 
vanced the  limits  of  the  greater  kingdoms  so  widened  as  to 
render  a  general  attendance  both  irksome  and  difficult,  and 
for  this  reason  the  mass  of  the  people  simply  ceased  to  attend.1 
In  that  way  assemblies  purely  democratic  in  theory,  without 
the  formal  exclusion  of  any  class,  shrank  up  into  assemblies 
purely    aristocratic.     The    representative    principle    existed,  Represent- 
it  is  true,  in  the  lower  ranges  of  organization,2  but  the  idea  dpies'not" 
had  not  yet  sufficiently  developed  to  be  employed  in  national  mvolved- 
concerns.    The  time  had  not  yet  come  for  the  early  kingdoms 

1  That  is  the  theory  of  Kemble  as  developed  in  his  chapter  (vi.)  on  the  Wite- 
nagemot, Saxons  in  England,  vol.  ii.,  and  as  restated   by  Freeman,   Norman 
Conquest,  i.  67-71,  and  Appendix  2,  Comparative  Politics,  p.  232. 

2  In  the  representation  of  the  townships  in  the  courts  of  the  hundred  and  the 
shire. 


222 


THE  SCIENCE  OF  JURISPRUDENCE 


Growth  of 
unity. 


Kingdoms 

Central,  and 
Britain"1 


Threefoid 


down  after 

struggle  of 

two  cen- 


which  afterward  became  shires  to  send  representatives  to  a 
national  parliament,  —  that  principle  was  destined  to  be  the 
growth  of  later  times.  Such  was  the  origin  and  history  of 
the  witenagemot,  whether  considered  as  a  national  assembly 
of  an  heptarchic  state  or  as  the  national  assembly  of  all  the 
English  when  finally  united  under  the  house  of  Cerdic. 

5.  When  written  history  first  reveals  to  us  through  the 
pages  of  Baeda  the  form  which  the  new  society  in  Britain 
had  assumed,  the  seven  or  eight  aggregates,  generally  known 
as  the  heptarchic  states,  were  even  then  manifesting  a  ten- 
dency to  group  themselves  in  three  great  masses,  soon  to  be 
known  as  the  kingdoms  of  Northern,  Central,  and  Southern 
Britain.1  The  limits  of  the  northern  kingdom,  the  realm  of 
the  Northumbrians,  stretched  from  the  Humber  to  the  Forth. 
The  southern  kingdom  of  the  West  Saxons  extended  from 
the  line  of  Watling  Street  to  the  coast  of  the  Channel.  Be- 
tween the  two  lay  the  kingdom  of  Mid  Britain,  destined  to 
become  most  powerful  under  the  leadership  of  the  Mercian 
kings.  When  Aethelfrith  in  593  became  king  of  Northum- 
bria,  it  is  probable  that  this  threefold  division  was  clearly 
established.  How  to  destroy  it  so  as  to  unite  the  whole 
English  nation  under  the  rule  of  a  single  overlord,  was  a 
problem  that  required  for  its  solution  a  period  of  more  than 
two  hundred  years.  During  that  period  two  forces,  widely 
different  in  character,  were  constantly  working  in  the  same 
direction,  and  through  their  joint  efforts  national  unity  was 
at  last  attained.  These  two  forces  were  the  church  and  the 
sword.  The  organizing  and  centralizing  power  of  the  one 
made  possible  the  enduring  triumph  of  the  other.  The 
Teutonic  conquest  of  Britain  differed  in  two  material  par- 
ticulars from  all  other  Teutonic  conquests  made  within  the 
limits  of  the  Roman  Empire.  In  every  other  province  the 
conquerors  gradually  accepted  both  the  language  and  the 


1  Green,  Making  of  England,  p.  299  n. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  223 

religion  of  the  conquered.    In  Britain  they  accepted  neither; 

there  they  clung  with  tenacity  to  their  native  speech  and  to 

their  Aesir  faith.    A  sullen  spirit  of  national  hate  seems  to 

have  forbidden  any  attempt  upon  the  part  of  the  British 

Christians  to  preach  the  gospel  to  their  heathen  neighbors. 

For  a  century  and  a  half  after  the  conquest  began  the  in- 

vaders of  Britain  remained  heathen.     By  the  intervention 

of  this  unbroken  barrier  of  English  heathendom  the  Celtic 

Christians  were  entirely  isolated  and  cut  off  from  the  conti- 

nental churches  of  the  West.    In  order  to  break  that  barrier,  Conversion 

so  as  to  bring  Britain  once  more  within  the  domain  of  the  ^  unity  in 


Christian  world,  Gregory  sent  forth  a  band  of  missionaries  to 
reconquer  for  Rome  what  the  legions  had  given  up.1    In  597 
Augustine  landed  on  the  shores  of  Kent,  and  four  years 
later  he  received  a  letter  from  Rome  marking  out  a  plan  of 
ecclesiastical  organization  designed  to  embrace  the  whole 
island.2    In  that  scheme  London  and  York,  which  had  been 
the  principal  cities  of  Roman  Britain,  were  designated  as 
the  centers  of  two  archbishoprics,  to  each  of  which  were 
to  be  annexed  twelve  suffragan  sees.     But  after  a   struggle 
of  more  than  thirty  years  Latin  Christianity  accomplished  Latin 
nothing  permanent  outside  of  Kent.     The  spiritual  conquest 
of  the  north  was  to  be  achieved  by  preachers  who  were  to  con(iue8t8- 
come  from  an  outpost  of  the  Celtic  church  established  in  the 
Isle  of  Hii  or  lona,  off  the  west  coast  of  Scotland.    Through 
their  fiery  missionary  zeal  the  standard  of  Woden  was  forced 
to  yield  to  the  standard  of  Christ,  a  result  which  precipitated 
the  question  whether  the  English  nation  as  a  whole  should 
accept  Christianity  in  its  Celtic  or  its  Latin  form.     In  the 
Synod  of  Whitby,  called  in  664,  it  was  settled  that  the  nascent  Synod  of 
English  church  should  not  attempt  by  opposing  Rome  to  664.   y' 
fight  against  the  world.8 
Although  each  one  of  the  heptarchic  kingdoms  was  Chris- 

1  Baeda,  Hist.  Eccl.  i.  2,  5,  26.  »  Ibid.  i.  29.  »  Ibid.  iii.  25,  26. 


224 


THE  SCIENCE  OF  JURISPRUDENCE 


Organi- 
sation of 
English 
Church  by 
Theodore. 


Arrived  in 
Kent  in  669. 


First  arch- 
bishop of 
entire 
church. 


tianized  from  a  distinct  source,  the  general  aspects  of  the 
missionary  work  were  everywhere  the  same.  The  conver- 
sion of  the  king  generally  preceded  the  acceptance  of  the 
faith  upon  the  part  of  his  people,  whereupon  the  missionary 
bishop  became  the  royal  chaplain  and  the  kingdom  itself  his 
diocese.1  In  that  way  the  heptarchic  divisions  of  the  country 
reappeared  in  the  earliest  forms  of  organization  which  the 
church  assumed.  But  it  was  no  part  of  the  plan  of  Rome 
to  permit  the  bishoprics  thus  established  to  remain  long  in 
a  state  of  isolation.  In  669  Theodore  of  Tarsus,  appointed 
by  Pope  Vitalian  to  the  vacant  see  of  Canterbury,  arrived 
in  Kent 2  with  the  specific  purpose  of  organizing  the  English 
church  so  that  it  could  be  brought  into  definite  relations  with 
the  see  of  Rome.  At  the  coming  of  Augustine,  seventy-two 
years  before,  the  division  of  the  heathen  English  into  the 
three  kingdoms  of  Northern,  Central,  and  Southern  Britain 
was  already  clearly  defined.  Theodore  upon  his  arrival 
found  the  political  condition  of  the  country  substantially 
unchanged.  But  spiritually  a  great  change  had  taken  place, 
— the  heathen  English  had  become  Christians.  It  was  possible, 
therefore,  for  Theodore  as  primate  to  deal  with  the  English 
nation  as  a  whole.  The  first  three  years  that  followed  his 
coming  he  passed  in  visiting  all  parts  of  the  island,  and  he 
was  everywhere  received  with  welcome  and  reverence.  "He 
was  the  first  of  the  archbishops  whom  the  whole  English 
church  consented  to  obey." 3  After  settling  all  personal 
disputes  among  the  bishops,  Theodore  assembled  them, 
together  with  their  leading  clergy,  in  a  council  which  was 
held  at  Hertford  in  673.4  By  the  decrees  of  this  council 

1  "The  princes  being  apparently  desirous  of  attaching  a  Christian  prelate  to 
their  comitatus,  in  place  of  the  Pagan  high-priest  who  had  probably  occupied  a 
similar  position."     Saxons  in  England,  ii.  360. 

2  Baeda,  Hist.  Eccl.  iv.  1. 

*  "Isque  primus  erat  in  archiepiscopis,  cui  omnis  Anglorum  Ecclesia  manus 
dare  consentiret. "     Baeda,  Hist.  Eccl.  iv.  2. 

*  Ibid.  iv.  5. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  225 

each  bishop  with  his  clergy  was  restricted  to  his  own  diocese, 
and,  what  was  far  more  important,  it  was  ordained  that  the 
episcopate  should  meet  annually  in  council    at    Ctovesho.1 
Soon  after  the  meeting  of  the  council  of  Hertford,  Theodore  Theodore 
entered  upon  the  execution  of  his  plans  for  the  permanent  thTgre&t 
organization  of  the  church,  which  involved  an  increase  in  dioceses- 
the  episcopate  and  a  breaking  up  of  the  great  dioceses  into 
smaller  sees.    The  last  part  of  the  work  was  carried  out  by 
a  falling  back  upon  the  older  tribal  boundaries  which  the 
English  settlers  were  so  careful  to  preserve.    The  see  of  East 
Anglia  was  broken  up  into  the  dioceses  of  the  North  Folk 
and  the  South  Folk,2  while  Mercia  and  Northumbria  were  di- 
vided in  the  same  way.3    Wessex  alone  of  the  larger  kingdoms 
resisted;   but  a  few  years  after  Theodore's  death  it  yielded, 
and  the  whole  nation  was  then  grouped  in  sixteen  sees,  subject 
to  the  metropolitan  primacy  of  Canterbury.     Within  a  short  Primacy  of 
time  afterwards  this    arrangement  was    so  modified  as  to 
allow  to  York  the  position  of  an  archbishopric,  with  three 
suffragan  sees.     By  the  final  subdivision  of  Wessex,  under 
Eadward  the  Elder,  the  plan  of  Theodore  was  at  last  carried  Work 
out,  and  the  territorial  organization  of  the  dioceses  as  then  ^der ^ad- 
fixed  has  remained,  with  a  few  minor  changes,  to  the  present  ^fcter**"5 
day. 

Through  the  results  of  the  work  of  Theodore  the  disunited  Unity  of 
English  people  found  it  possible,  for  the  first  time,  to  draw  foreshadows 
together   in   obedience   to   a   recognized   central   authority.  ^te° 
A  people  who  had  never  yet  been  able  to  realize  a  sense  of 
political  unity  under  the  sway  of  a  single  overlord  were  now 
able  to  realize  a  sense  of  ecclesiastical  unity  under  the  metro- 
politan primacy  of  a  truly  national  church.     Representative 
men  from  every  part  of  the  English  nation  had  never  yet 

1  Stuhbs  and  Haddan,  Councils,  iii.  118-122. 

2  Baeda,  Hist.  Eccl.  iv.  5. 

'  As  to  the  division  of  Mercia,  see  Stubbs  and  Haddan,  Councils,  iii.  127-130; 
as  to  the  work  in  Northumbria,  Eddi,  Life  of  Wilfred,  c.  24. 

Q 


226 


THE  SCIENCE  OF  JURISPRUDENCE 


{Jhurch 

councils 

first 

national 

.gatherings. 


Northum- 
bria's 
struggle  for 

supremacy. 


Mercia's 
struggle. 


assembled  in  a  single  witenagemot  for  the  purpose  of  political 
legislation.  But  the  existence  of  such  an  assembly  was  now 
clearly  foreshadowed  in  the  annual  meetings  of  the  episco- 
pate for  the  purpose  of  ecclesiastical  legislation.  The  early 
councils  of  the  church  were  the  first  national  gatherings  in 
which  the  English  nation  was  ever  represented  as  a  whole. 
The  infant  church  thus  became  the  nursery  of  a  national 
spirit  which  finally  ripened  into  a  complete  sense  of  national 
consciousness.  The  unity  of  the  church  led  the  way  to  the 
unity  of  the  state,  as  the  national  councils  of  the  church  led 
the  way  to  national  witenagemots. 

While  the  church  was  thus  paving  the  way  for  national 
unity  the  three  great  kingdoms  of  Northern,  Central,  and 
Southern  Britain  attempted,  each  in  its  turn,  to  solve  the 
problem  of  so  extending  its  supremacy  over  all  the  rest  as  to 
bring  the  English  nation  as  a  whole  under  the  sway  of  its 
own  royal  house.  The  initial  effort  was  made  by  Nor- 
thumbria  under  Eadwine,1  its  first  bretwalda,  who  extended 
his  supremacy  over  all  the  English  kingdoms  except  Kent, 
to  whose  royal  house  he  became  allied  in  625.2  The  pre- 
dominance of  Northumbria  really  ends  in  659  with  the  re- 
vival of  the  Mercian  power  under  Wulfhere.  After  that 
event  Northumbria  abandoned  the  struggle  for  supremacy 
to  Mercia  and  Wessex.3  Early  in  the  eighth  century  the 
Christian  Mercians  appear  as  a  great  power  in  Mid  Britain 
under  the  leadership  of  Aethelbald,  who  overran  the  whole  of 
Wessex  during  a  war  which  seems  to  have  terminated  in  733. 4 
For  twenty  years  after  that  event  the  overlordship  of  Mercia 
was  recognized  by  all  the  English  south  of  the  Humber. 
While  the  power  of  Offa,  who  succeeded  Aethelbald  in  758, 

1  E.  Chron.  a.  617.  At  that  time,  after  the  battle  of  the  Idler,  Eadwine  as- 
cended the  Northumbrian  throne. 

*  By   a  marriage  with   the    Christian  princess  Aethelburh.      Baeda,  Hist. 
Ecd.  ii.  9. 

*  Green,  Making  of  England,  p.  298.  •  E.  Chron.  a.  733. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  227 

rose  high  enough  to  tempt  him  to  aspire  to  a  correspondence 
upon  equal  terms  with  Charles  the  Great,  he  was  never  able 
to  establish  an  overlordship  over  either  of  the  rival  kingdoms 
of  Northumbria  and  Wessex.1  To  the  latter,  which  grew  Wessex 's 
out  of  a  small  settlement  made  on  the  coast  of  Hampshire  by 
an  invading  host  led  by  the  ealdormen,  Cerdic  and  Cynric,2 
was  to  come  the  final  victory.  The  first  enemy  to  be  con- 
quered was  the  Welsh  from  whom  the  Severn  valley  was  won 
by  the  battle  of  Deorham  in  577. a  Not,  however,  until  early 
in  the  ninth  century  did  the  last  of  the  Britons  in  Cornwall 
bow  to  the  West  Saxon  supremacy.  In  815Ecgberht  marched 
into  the  heart  of  Cornwall,  and  after  a  struggle  of  eight  years 
the  power  of  the  Cornish  Britons  was  broken  and  the  su- 
premacy of  Wessex  extended  to  the  Land's  End.4  With  all 
internal  dissensions  hushed  beneath  the  sway  of  Ecgberht, 
and  with  all  fear  of  attack  from  the  Welsh  finally  dispelled, 
the  West  Saxons,  whose  unity  as  a  people  had  never  been 
broken,  were  now  ready  to  assume  the  leadership  of  the 
English  nation.  First  Mercia  and  then  Northumbria  was 
forced  to  yield.  Thus  after  two  centuries  of  struggle,  in 
which  the  greatest  kings  of  Northumbria  and  Mercia  had 
failed,  Ecgberht,  the  eighth  and  last  of  the  bretwaldas,  brought  Ecgberht's 
about  a  forced  union  of  all  the  English  kingdoms  under  the 
sway  of  the  house  of  Cerdic.  In  the  hour  of  victory  the 
king  of  the  West  Saxons  ventured,  for  once  at  least,  to  style 
himself  king  of  the  English.5 

1  The  Mercian  supremacy  was  broken  by  the  West  Saxons  in  754  upon  the 
field  of  Burford.  E.  Chron.  a.  752.  From  752  to  849  (from  the  death  of  Baeda 
to  the  reign  of  Aethelwulf),  the  entries  of  the  English  Chronicle  are  wrong 
by  two  years.  See  Stubbe,  Roger  of  Hoveden,  preface  to  i.  Ixxxix.  Rolls 
Series. 

3  They  were  advanced  to  the  dignity  of  kings  of  the  West  Saxons.  E.  Chron. 
a.  519. 

*  E.  Chron.  a.  577.     See  Guest,  "Conquest  of  the  Severn  Valley,"  Archaeo- 
logical Journal,  xix.  194.  *  E.  Chron.  a.  823  (825). 

•  "Ecgberhtus  gratia  Dei  Rex  Anglorum."     Codex  Diplomaticu*  Aevi  Saxo- 
nici,  i.  287. 


228 


THE  SCIENCE  OF  JURISPRUDENCE 


From 

Ecgberht  to 
Eadgar 
(829-958). 


Danish 
invasions. 


Aelfred  and 
the  Danes. 


Peace  of 

Wedmore, 

378. 


The 
Danelagh. 


Through  the  conquests  of  Ecgberht  all  the  Teutonic  states 
in  Britain  became  mere  dependencies  of  Wessex,  as  under 
kingdoms,  ruled  either  by  their  own  royal  lines  or  by  some 
prince  of  the  house  of  Cerdic.  Not,  however,  until  after 
a  century  and  a  half  had  passed  by  did  these  loosely  united 
states  become  incorporated  as  integral  parts  of  one  consoli- 
dated kingdom.  The  history  of  that  process  of  consolida- 
tion is  inseparably  connected  with  the  Danish  invasions, 
whose  pressure  had  begun  to  be  felt  even  before  the  work 
of  union  had  been  finally  accomplished.  The  Chronicle 
tells  us  that  in  855  the  heathen  men  wintered  for  the  first 
time  in  the  isle  of  Sheppy.  From  that  time  to  the  end  of 
the  ninth  century  the  Danes,  who  now  came  in  large  bodies, 
seriously  engaged  in  the  work  of  conquest  and  permanent 
settlement.  In  the  reign  of  Aethelred  the  First  (866-871) 
the  full  force  of  Danish  invasion  broke  upon  the  loosely  united 
realm  which  his  grandfather  Ecgberht  had  built  up.1  In 
878  so  overwhelming  was  the  force  of  the  invasion  that 
Aelfred,  who  had  succeeded  Aethelred,  was  obliged  to  hide 
as  a  fugitive  in  the  marches  of  Somerset;  and  for  a  time  it 
seemed  as  if  the  standard  of  Woden  had  triumphed  alike 
over  the  Dragon  of  Wessex  and  the  standard  of  Christ.  But, 
after  a  great  victory  won  by  Aelfred  in  the  same  year,  the 
invaders  entered  into  a  solemn  peace  at  Wedmore,  whereby 
all  Northumbria,  all  East  Anglia,  all  Central  England  east 
of  a  line  stretching  from  Thames'  mouth  along  the  Lea  to 
Bedford,  thence  along  the  Ouse  to  Watling  Street  and  by 
Watling  Street  to  Chester,  was  left  subject  to  the  Northmen.2 
Within  this  Danelagh,  which  embraced  more  than  one  half 
of  the  empire  of  Ecgberht,  the  Danes  settled  down  among 
the  conquered  English  as  lords  of  the  soil.  The  customary 
law  that  grew  up  within  the  Danelagh,  the  name  applied  to 

1  As  to  the  conquest  of  Northumbria,  the  first  to  yield,  see  Robertson,  Scot- 
land under  the  Early  Kings,  ii.  430. 

*  See  Aelfred  and  Guthrum's  Peace  in  Thorpe,  Laws  and  Institutes,  i.  152. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  229 

the  region  in  which  Danish  law  prevailed,  varied  only  in  small 
particulars  from  English  customary  law;   new  names  rather 
than  new  customs  date  from  the  Danish  occupation.    Aelfred, 
at  his  death  in  901, *  left  the  Danes  in  quiet  possession  of  the 
whole  district  ceded  to  them  by  the  Peace  of  Wedmore;  the 
task  of  reconquering  the  Danelagh  he  transmitted  to  his 
children.     While  it  may  be  said  that  Aethelstan  completed 
the  conquest  of  the  Danelagh  by  incorporating  Northumbria 
as  an  integral  part  of  the  realm,  the  reigns  of  his  successors 
continued  to  be  disturbed  by  revolts  in  the  north,  until  the 
final  extinction  of  the  Northumbrian  kings.     Not  until  the 
death  of  the  last  Danish  king  of  Northumbria  in  954  did  the 
phantom  of  provincial  royalty  pass  forever  away.    From  Extinction 
that  time  forth  the  great  realm  of  the  north  was  governed  ciafroyaity. 
by  an  earl  or  ealdorman  appointed  by  the  national  king. 
When  Eadwig  died  in  958 2  the  kingdom,  after  a  brief  division, 
was   reunited  under  Eadgar  the   Peaceful,   whose  tranquil  Eadgar  the 
reign  of  seventeen  years  constitutes  the  most  glorious  period 
in  the  history  of  the  West  Saxon  Empire.    The  death  of 
Eadwig  and  the  final  extinction  of  all  provincial  royalty 
paved  the  way  for  Eadgar's  accession  to  the  threefold  sover- 
eignty of  the  West  Saxons,  Mercians,  and  Northumbrians.8 
Engle,  Saxon,  and  Dane  were  united  under  his  sway ;  he  be- 
came the  sole  and  immediate  king  of  all  the  English,  and  in  Sole  and 
his  time  the  name  of  Britain  passed  into  that  of  Englaland,  king  of  111 
the  land  of  Englishmen.    The  growth  of  a  real  national  unity  the  ED^h- 
was  now  complete;    the  consolidated  kingdom  of  England 
was  made  not  only  in  fact  but  in  name. 

6.   The  growth  of  the  consolidated   kingdom  of  England  Constitution 
embraces  three  distinct  periods:    the  union  of  the  primitive  consolidated 
states   in   heptarchic   kingdoms;    the   forced  union   of   the  kmsdom- 
heptarchic  kingdoms  under  the  supremacy  of  Wessex;    the 

1  E.  Chron.  a.  901.  »  Ibid.  a.  958. 

*  See  Robertson,  Historical  Essays,  pp.  203-216. 


THE  SCIENCE  OF  JURISPRUDENCE 


Early  shire 
not  to  be 
confounded 
with 
modern. 


Modern 
shire  iden- 
tical with 
primitive 
state. 


Historical 
origin  of 
certain 
modern 
shires. 


period  of  consolidation  which,  beginning  with  Ecgberht,  ends 
with  Eadgar.  With  the  history  of  that  process  the  growth  of 
the  shire  system  is  inseparably  interlaced.  The  scir  or  shire 
was  simply  what  the  word  implies,  —  a  division  of  a  larger 
whole ;  and  it  is  now  maintained,  with  greater  or  less  emphasis, 
that  scir  or  shire  was  the  term  originally  employed  in  Britain 
to  describe  the  district  that  arose  out  of  a  union  of  town- 
ships. But  the  early  shire,  which  thus  represented  the 
largest  division  of  the  primitive  states,  must  not  be  con- 
founded with  the  modern  shire,  which  represents  the  largest 
division  of  the  consolidated  kingdom.  With  the  triumph  of 
Ecgberht  begins  the  work  of  consolidation  which  occupies 
nearly  a  century  and  a  half  in  its  completion.  In  that  process 
local  kingship  became  extinct,  and  the  primitive  states  are 
finally  incorporated  with  Wessex — they  cease  to  exist  as 
states  and  become  shires.  And  as  the  primitive  states  thus 
descend  in  status,  their  own  shires  necessarily  descend  in  the 
same  way,  —  they  cease  to  be  shires  and  become  hundreds. 
Thus  it  may  be  assumed,  as  a  general  principle,  "  that  the  state 
of  the  seventh  century  became  the  shire  of  the  tenth,  while  the 
shire  of  the  seventh  century  became  the  hundred  of  the  tenth."  * 
The  use  of  the  word  "shire"  in  the  enlarged  and  modern 
sense  seems  to  have  been  introduced  during  or  shortly  after 
the  reign  of  Ecgberht ;  but  the  name  of  the  hundred  does  not 
occur  until  the  laws  of  Eadgar,2  in  whose  time  the  arrange- 
ment of  the  whole  kingdom  in  shires  was  probably  com- 
pleted. The  map  of  the  England  of  to-day  clearly  discloses 
the  origin  of  the  modern  shire  in  what  has  been  called  the 
primitive  state.  Out  of  the  principalities  founded  by  the 
Somersaetas,  the  Dorsaetas,  the  Wilsaetas,  the  Middle  Saxons, 
the  East  Saxons,  the  South  Folk,  the  North  Folk,  have  grown 


1  See  Essay  upon  the  "Anglo-Saxon  Courts  of  Law,"  by  Mr.  Henry  Adams 
in  Essays  in  Anglo-Saxon  Law,  p.  19. 
8  Eadgar,  i.  Constitutio  de  hundredis. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  231 

the  shires  of  Somerset,  Dorset,  Wilts,  Middlessex,  Essex, 
Suffolk,  and  Norfolk.  Hampshire,  Berkshire,  and  Devon- 
shire are  equally  ancient,  being  mentioned  in  the  Chronicle 
as  shires  as  far  back  as  the  reign  of  Aethelwulf.1  Kent  and 
Sussex  are  two  of  the  heptarchic  kingdoms  whose  original 
shires  are  perhaps  represented  by  their  lathes  and  rapes.2 
In  Wessex  the  shire  system  attained  its  earliest  and  purest 
development.  The  West  Saxon  shires  retain  to  this  day  the 
names  and  boundaries  of  the  early  settlements  founded  by 
the  successors  of  Cerdic.  It  is  more  than  likely,  however, 
from  the  evidence  of  local  nomenclature,  that  Mercia  was 
artificially  divided  into  shires  by  the  English  kings  after  the 

reconquest  from  the  Danish  invaders.3    In  the  consolidated  Consoli- 
dated 
kingdom  the  entire  system  of  local  administration  is  vested  in  kingdom 


the  shires,  while  the  central  and  national  powers  are  vested 
in  the  king  and  witenagemot.  The  consolidated  kingdom  shlres- 
is,  in  fact,  a  mere  aggregation  of  shires,  whose  governments 
represent  the  entire  local  machinery  of  the  constitution.  Or, 
to  state  the  matter  in  another  form,  now  the  kingdom  forms 
a  new  whole,  of  which  the  shires  have  sunk  to  be  mere  ad- 
ministrative divisions.  The  primitive  state  in  descending 
to  the  status  of  a  shire  preserves  substantially  all  its  powers 
as  a  local  self-governing  community.  The  tribal  king  has 
passed  away,  it  is  true,  and  his  place  has  been  filled  by  the 
ealdorman,  who  stands  in  the  government  of  the  shire  as  the 
deputy  of  the  national  king;4  but  the  popular  assemblies 
of  the  primitive  state  all  survive  as  parts  of  the  shire  system. 
The  primitive  state  assembly  is  the  folk  moot,  the  highest  Folk  moot 

.  survives  as 

popular  court  of  the  shire,  and  as  such  it  retains  some  traces  shire  moot. 

1  E.  Chron.  a.  851,  860. 

2  "Kent,  however,  appears  as  'Cantescyre'  as  early  as  the  reign  of  Athel- 
stan.     Essex,  Middlesex,  and  Surrey  are  also  ancient    kingdoms."     Stubbs, 
Constitutional  History,  i.  109. 

*  Freeman,  Norman  Conquest,  i.  32,  and  Appendix,  note  E. 
«  Sohm,  Altd.  R.  u.  G.  Verf.  i.  25,  26. 


232  THE  SCIENCE  OF  JURISPRUDENCE 

of  the  ancient  nationality.1    The  primitive  shire  court  sur- 
vives as  the  hundred  court  of  the  consolidated  kingdom,  the 
ordinary  law  court  in  which  all  causes  are  heard  in  the  first 
Hundred       instance.     Beneath  the  hundred  courts  stand  the  tun  moots, 
moots'"1       the  governing  bodies  of  the  village  communities  or  town- 
ships.   In  the  organization  of  these  local  courts  the  funda- 
mental Teutonic  principle  is  preserved  intact ;  the  administra- 
tion of  law,  as  well  as  political  administration,  is  vested  in 
an  expanding  series  of  popular  assemblies  composed  of  the 
qualified  freemen  whose  interests  are  directly  involved.     If 
the  constitutional  powers  of  the  consolidated  kingdom  be 
classified  according  to  modern  ideas,  the  executive  power 
The  king,      was  vested  in  the  king ;  the  legislative,  in  the  king  and  witan ; 
the  judicial,  in  the  witan  and  the  local  courts. 

From  Caesar's  sketch  the  conclusion  may  be  drawn  that  in 
the  homeland  kingship  was  the  exception  and  not  the  rule.2 
It  seems  to  be  clear  that  the  chiefs  who  led  the  war  bands 
to  the  conquest  of  Britain  bore  no  higher  title  than  that  of 
ealdorman  or  heretoga.3  As  the  conquest  advanced,  and  as 
definite  districts  of  country  were  permanently  secured,  and 
as  the  various  groups  of  conquerors  within  such  district  felt 
the  need  of  drawing  together  under  a  permanent  instead  of 
a  temporary  leadership,  the  ealdorman  or  heretoga  was 
advanced  to  the  dignity  of  a  king,4  who  could  represent  in 

1  The  bishops  of  Kent,  and  all  the  thegns,  eorl,  and  ceorl  of  Kentshire,  declare 
to  Aethelstan  in  their  gemot  at  Faversham  their  acceptance  of  measures  taken 
in  the  recent  witenagemot  of  Greatley.     For  the  document  containing  this  popu- 
lar acceptance  of  a  law,  see  Thorpe,  i.  216 ;   for  comments  upon  it  see  Kemblej 
Saxons  in  England,  ii.  233 ;   Hallam,  Middle  Ages,  ii.  376 ;   Palgrave,  Common- 
wealth, p.  637. 

2  "  In  pace,  nullus  est  communis  magistratus ;  sed  principes  regionum  atque 
pagorum   inter  suos   jus   dicunt."     Bell.    Gall.    vi.    23.     Tacitus    clearly    dis- 
tinguishes the  monarchical  tribes  from  the  non-monarchical,  without  intimat- 
ing the  extent  to  which  royalty  prevailed.     Germ.,  cc.  25,  44. 

3  "Heora   heretogan   waeron   twegen   gebroflra,    Hengest   and  Horsa."     E. 
Chron.  a.  449. 

4  "The  word  rice  I  take  to  mark  the  change  from  ealdormanship  to  kingship." 
Freeman,  Norman  Conquest,  i.  392,  Appendix  K. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  233 

his  person  the  unity  of  a  new  national  life.  In  order  to  attach 
the  idea  of  permanency  to  the  new  kingship,  the  name  of  the 
son  was  associated  with  that  of  the  father  as  a  recognition 
of  the  hereditary  principle,  attended  and  modified  by  the  Hereditary 
older  principle  of  election.  The  right  to  the  throne  might  united  by 
be  vested  by  the  original  choice  in  a  single  royal  house,  but 
the  question  as  to  which  members  of  that  house  should  receive 
the  succession  when  a  vacancy  occurred  was  one  the  national 
assembly  alone  could  determine.  Out  of  the  Teutonic  con- 
quest of  Britain  thus  arose  a  brood  of  petty  kings  whose 
presence  in  every  principality  retarded  the  growth  of  a  na- 
tional unit  for  centuries.  As  the  process  of  aggregation 
advanced,  the  institution  of  kingship  grew  with  each  ex- 
tension of  territory.  As  an  heptarchic  king  rose  in  power 
and  importance  above  the  petty  royal  head  of  a  primitive 
state,  so  did  the  king  of  all  the  English  rise  in  power  and 
importance  above  the  heptarchic  king.  In  the  process  of 
aggregation  was  thus  involved  the  growth  of  kingship,  and 
in  the  growth  of  kingship  were  involved  all  the  elements  of 
constitutional  life.  As  the  smaller  kingdoms  grew  into 
a  single  state,  and  as  the  king  of  the  one  united  kingdom 
became  the  king  of  the  whole  nation,  the  relation  of  lord  and 
man,  inherent  in  the  comitatus,  widened  into  the  principle 
that  the  king  was  the  lord  or  patron  of  his  people,  and  was  HOW  king 
so  recognized  in  the  earlier  laws.1  Thus  in  time  peace  and 
justice,  which  belonged  at  first  to  the  folk,  became  the  king's  of  mje 
peace  and  the  king's  justice,  enforcible  by  his  personal 
servants,  while  the  folkland  is  gradually  transformed  into 
terra  regis.2  By  the  force  of  the  same  principle  the  king's 
thegns  and  the  great  ecclesiastic  persons  and  bodies  changed 

1  See  the  legislation  of  Aelfred,  §  4,  "He  who  plots  against  his  lord's  life,  let 
him  be  liable  in  his  life  to  him  and  in  all  that  he  has,  or  let  him  prove  himself 
true  according  to  his  lord's  wer." 

2  See  Nasse,  On  the  Agricultural  Community  of  the  Middle  Ages  (Ouvry's 
trans.),  p.  28;   Digby,  Law  of  Real  Property,  pp.  10-19. 


234 


THE  SCIENCE  OF  JURISPRUDENCE 


Movement 
from  per- 
sonal to 
territorial 
organiza- 
tion. 


Royal 
revenue. 


their  relations  to  the  waste  lands  originally  belonging  to  the 
townships.  As  the  principle  of  lord  and  man  widened,  the 
free  communities  were  gradually  reduced  to  a  dependent 
condition.1  All  the  elements  of  feudalism  thus  existed  before 
the  Conquest,  ready  to  be  worked  into  that  systematic  feudal 
system  for  which  that  event  prepared  the  way.  The  gen- 
eral nature  of  the  transition  has  been  described  as  a  move- 
ment from  personal  to  territorial  organization,  —  from  a 
state  of  things  in  which  personal  freedom  and  political  right 
were  the  dominant  ideas  to  a  state  of  things  in  which  these 
ideas  have  become  bound  up  with  and  subservient  to  the 
relations  arising  out  of  the  possession  of  land.2  While  the 
king  of  the  consolidated  kingdom  could  perform  no  important 
act  without  the  consent  of  the  national  assembly,  he  was  no 
mere  puppet  in  their  hands,  for  the  assembly  was  equally 
powerless  to  act  without  his  concurrence.  His  revenues, 
which  were  not  contingent  upon  legislative  grants,  must  have 
been  sufficient  to  maintain  the  royal  state  and  dignity.  In 
addition  to  the  sums  that  accrued  to  the  king  from  his  pri- 
vate estates,  which  he  possessed  as  an  individual,3  from  the 
folkland  in  the  nature  of  rents  (cyninges-gafol) .  he  received 
revenues  from  the  following  sources :  from  fines  levied  in  the 
courts  of  law  to  the  king's  use,  as  conservator  of  the  public 
peace;  from  treasure  trove,  wreck,  mines,  salt  works,  and 
the  mint;  from  tolls,  markets  and  ports,  and  from  transport 
by  roads  and  navigable  streams ;  from  the  heriots  which  were 
assessed  upon  the  estates  of  the  king's  special  dependents 
according  to  their  rank;  and  from  escheats  and  forfeitures. 

1  As  to  the  "Rise  of  the  Manor  out  of  the  Mark,"  see  Maine,  Village  Com- 
munities, p.  143. 

8  "The  Angel-cynn  of  Alfred  becomes  the  Engla-lande  of  Canute."  Stubbs, 
Constitutional  History,  i.  166. 

*  In  a  grant  made  about  980  by  Aethelred  to  Abingdon  he  draws  the  dis- 
tinction between  his  propria  hereditas  which  he  could  alienate,  and  the  terrae 
regales  et  ad  regios  filios  pertinentes,  whose  alienation  the  witan  had  refused  to 
sanction.  Cod.  Dipl.,  no.  1312. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  235 

The  king  had  the  right  to  maintenance  for  himself  and  suite 
when  in  public  progress;  and  he  had  also  the  right  to  license 
the  building  of  bridges  and  fortresses.1  Thus  supported  by 
an  independent  revenue,  the  king  was  able  to  deal  upon  equal 
terms  with  the  witan,  with  whose  advice  and  consent  he 
performed  all  important  acts. 

The  national  assemblies  of  the  heptarchic  kingdoms  are  not  Constitu- 
folk  moots  but  witenagemots ;  they  are  not  great  popular  witan. 
gatherings  of  an  entire  nation,  but  small  aristocratic  bodies 
composed  of  the  great  and  wise  of  the  land.  In  the  absence 
of  the  principle  of  representation  it  is  easy  to  understand 
how  an  originally  democratic  assembly,  into  which  the  mag- 
nates of  the  land  entered  as  great  factors,  would  naturally 
shrink  up  into  a  narrow  aristocratic  body  composed  of  the 
magnates  only,  wherever  the  extent  of  territory  to  be  trav- 
ersed rendered  it  difficult  for  the  mass  of  the  people  to  attend. 
The  results  of  this  principle  are  practically  the  same  whether 
•  worked  out  in  England  or  Achaia.2  Through  a  perfectly  England 

and  Achaia. 

natural  process  the  folk  moot,  the  meeting  of  the  people, 
was  converted  into  a  witenagemot,  the  meeting  of  the  wise, 
in  which  were  considered  all  matters  involving  the  general 
good.  Such  is  the  history  of  the  witan,  whether  considered  as 
the  supreme  council  of  an  heptarchic  state  or  as  the  supreme 
council  of  the  whole  English  nation  when  finally  united  in 
a  single  consolidated  kingdom.  That  such  a  change  did 
take  place,  and  that  the  whole  body  of  the  people  did  retain 
for  a  long  period  of  time  the  abstract  right  to  be  present  in 
the  national  gemot,  may  be  implied  from  a  series  of  vestiges 
beginning  with  the  Dooms  of  Aethelberht  and  extending  beyond 
the  Norman  Conquest.  As  the  work  of  consolidation  ad- 
vanced, the  magnates  of  the  conquered  kingdoms  became 
entitled  to  seats  in  the  Witan  of  Wessex,  which  finally  became 

1  See  Kemble,  Saxons  in  England,  i.  151 ;  ii.  54,  55-78,  94,  98-102 ;  Essays  in 
Anglo-Saxon  Law,  pp.  64  sq. 

*  Cf .  Freeman,  History  of  Federal  Government,  pp.  266,  267. 


236  THE  SCIENCE  OF  JURISPRUDENCE 

of  the  Great  Council  of  the  Empire.1  The  supreme  powers  of 
became  the  consolidated  kingdom  were  vested  in  the  king  and  the 
Council  of  witan,  who  possessed  the  right  to  consider  all  public  acts  the 


the  Empire.  kjng  cou[^  authorize,  including  many  acts  which,  according 
to  modern  theories,  would  be  considered  as  purely  executive. 
In  every  act  of  legislation  the  right  of  the  witan  to  advise 
and  consult  was  invariably  recognized.  As  the  king's  reve- 
nue from  the  public  lands,  from  his  private  estates,  and  from 
other  sources  was  sufficient  to  maintain  the  royal  state,  it 
was  not  necessary  to  provide  a  royal  revenue  by  taxation. 
Not  until  the  period  of  the  last  Danish  invasion  did  cir- 
cumstances arise  which  required  the  imposition  of  a  general 
tax  for  the  public  service,  —  with  the  imposition  of  the 

History  of  Danegeld  the  history  of  English  taxation  really  begins.2 
The  witan  had  the  right,  conjointly  with  the  king,  of  making 
alliances  and  treaties  of  peace,  and  of  settling  their  terms.3 
The  folkland  was  administered  and  conveyed  conjointly 
by  the  king  and  the  witan.4  The  witan,  who  possessed  the 

Right  of  right  to  elect  the  king,  possessed  also  the  correlative  right  to 
^eP°se  ^m  whenever  his  government  was  not  conducted  for 
the  good  of  his  people.5  The  witan  legislated  for  the  church 
as  it  did  for  the  state,  and  the  king  and  the  witan  had  power 
to  appoint  prelates  to  vacant  sees.6 

1  The  number  of  the  witan  thus  increased  with  the  expansion  of  the  realm- 
As  to  the  composition  of  the  witan  held  in  934,  in  the  reign  of  Aethelstan,  and 
another  held  in  966,  in  the  reign  of  Eadgar,  see  Cod.  Dipl.,  nos.  364  and  518.     In 
the  first  an  act  of  the  witan  is  described  as  having  been  executed  tota  populi 
generalitate. 

2  The  assessment  of  1008,  in  which  we  find  the  origin  of  ship  money,  is  re- 
corded in  the  Abingdon  and  Peterborough  Chronicle  for  1008.     For  the  text, 
see  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i.  187,  note  2. 

*  See  Aelfred  and  Guthrum's  Peace  in  Thorpe,  Laws  and  Institutes,  i.  152. 

*  Nearly  every  grant  professes  to  have  been  made  by  the  king  cum  consilio, 
consensu  et  licentia.  procerum,  or  in  some  like  formula. 

'  The  Chronicle  says,  "This  year  (775),  Cynewulf  and  the  West  Saxon  witan 
deprived  his  kinsman  Sigeberht  of  his  kingdom,  except  Hampshire,  for  his 
unjust  doings."  At  least  two  cases  of  deposition  appear  to  have  occurred 
among  the  descendants  of  Ecgberht.  See  The  Origin  and  Growth  of  the  Eng- 
lish Constitution,  i.  190  sq. 

6  Such  was  the  theory  ;  as  to  the  practice,  see  Stubbs,  Constitutional  History, 
i.  134. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  237 

German  scholars  have  firmly  established  the  fact  that  the 
Teutonic  race,  in  the  earliest  known  period  of  its  development, 
vested  not  only  political  administration,  but  the  administra- 
tion of  law,  in  an  expanding  series  of  popular  assemblies 
composed    of    the    freemen    whose    interests    were    directly 
involved.     From  what  has  been  said  it  clearly  appears  that 
in  the  process  of  consolidation  the  ancient  shire  becomes 
the  modern  hundred,  while  the  primitive  state  becomes  the 
modern  shire.     The  folk  moot,  the  national  assembly  of  the 
ancient  kingdom,  survives  as  the  shire  moot,  an  institution 
distinctly  peculiar  to  England  as  compared  with  Germany.1 
The  government  of  the  shire  is  divided  between  the  ealdorman  constitu- 
and  the  scir-gerefa  or  sheriff,  —  the  one  the  representative  sj^m^ 
of  the  nation,  the  other  of  the  king.     The  shire  moot  was 
simply  the  ancient  folk  moot,  the  assembly  of  all  the  freemen 
resident  within  the  shire ;  and,  like  the  hundred  moot,  it  was 
attended  by  all  lords  of  lands  (called  in  this  respect  scir- 
thegns),2  by  the  parish  priest,  the  reeve,  and  four  men  selected 
from  each  township,8  and  by  the  twelve  senior  thegns  from 
each  hundred.4    The  shire  moot  was,  therefore,  not  only  a  pop- 
ular but  a  representative  assembly,  each  township  and  each 
hundred  within  the  shire  being  present  in  the  person  of  its 
representatives.    The  shire  moots  thus  became  the  training  Training 
schools  of  the  English  nation  in  self-government  on  the  rep-  ^if?gOV_ 
resentative  plan.    When  John,  in  1213,  summoned  for  the  ernment- 
first  time  the  "four  discreet  men"  from  each  county  to  appear 
as  representatives  in  the  great  council,  he  simply  applied  to 
national  purposes  a  system  of  representation  that  had  existed 
from  the  earliest  times.     "  The  four  men  and  the  reeve  had  Germ  of 
from  time  immemorial  represented  the  township  in  the  shire  ^Etative 

system. 
1  Waitz,  loc.  cit.,  ii.  494 ;   Essays  in  Anglo-Saxon  Law,  p.  21. 

*  Cod.  Dipl.  vi.  198. 

*  This  fact,  "left  questionable  in  the  laws,  is  proved  by  the  later  practice." 
Stubbs,  Constitutional  History,  i.  115.     See  also  Bigelow,  History  of  Procedure, 
133.  *  Cod.  Dipl.  iv.  137. 


238 


THE  SCIENCE  OF  JURISPRUDENCE 


Germ  of 
jury  system. 


Officers  of 
the  shire. 


Growth  of 

immunities. 


moot;  now  the  four  men  and  the  sheriff  represented  the 
shire  moot  in  the  national  council."  *  The  twelve  senior 
thegns  who  came  from  each  hundred  to  the  shire  moot,  as 
inquisitors  of  all  crimes  committed  in  the  hundred  to  which 
they  belonged,  probably  represented  the  earliest  form  of  the 
criminal  jury  of  presentment.2  In  the  community  witnesses 
who  appeared  in  the  shire  moot  to  testify  concerning  cir- 
cumstances, long-continued  relations,  and  occurrences  known 
to  them  as  neighbors,3  we  find  embodied  the  germ  out  of  which 
was  developed,  under  the  influence  of  the  Norman  writ  pro- 
cess, the  jury  of  judgment,  the  trial  jury  of  modern  times. 
The  law  administered  in  these  popular  courts,  through 
clumsy  forms  of  archaic  procedure,  was  strict  law,  whose 
severity  went  untempered  by  any  kind  of  equitable  juris- 
diction. The  only  way  in  which  the  strictness  of  the  cus- 
tomary law  could  be  avoided  was  by  compromise,  which 
seems  to  have  been  effected  wherever  it  was  possible.4  The 
presiding  officer  of  the  shire  moot  was  the  scir-gerefa,  and 
with  him  were  the  ealdorman  and  the  bishop,  —  the  one  to 
declare  the  law  temporal,  the  other  the  law  spiritual.5  In 
the  popular  courts  there  was  no  separation  of  secular  from 
spiritual  jurisdiction.  Such  was  the  general  condition  of 
things  before  the  archaic  judicial  constitution  was  torn  in 
pieces  by  the  growth  of  the  aristocratic  and  feudal  element 
represented  by  the  thegnhood,  at  whose  head  stood  the  king. 
It  is  admitted  on  all  hands  that,  certainly  before  the  Norman 

1  Select  Charters,  p.  287. 

2  Cf.  Forsyth,  Trial  by  Jury,  p.  57 ;  Palgrave,  English  Commonwealth,  i.  213 ; 
Stephen,  History  of  Criminal  Law,  i.  68,  69. 

1  Brunner,  Die  Entstehung  de  Schwurgerichte,  pp.  50-53 ;  Bigelow,  History  oj 
Procedure,  p.  309. 

4  "Arbitration  was,  perhaps,  the  habitual  mode  of  settling  disputes  among  the 
Anglo-Saxons."  Essays  in  Anglo-Saxon  Law,  p.  26. 

'  "And  let  the  hundred  gemot  be  attended  as  it  was  before  fixed ;  and  thrice 
in  the  year  let  the  burg-gemot  be  held ;  and  twice,  a  shire-gemot ;  and  let  there 
be  present  the  bishop  of  the  shire  and  the  ealdorman,  and  there  both  expound 
as  well  the  law  of  God  as  the  secular  law."  Eadgar,  ii.  5 ;  Cnut,  ii.  18. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  239 

Conquest,1  jurisdiction  was  granted  to  private  individuals 
without  stint;  that  private  law  courts  did  exist  by  virtue 
of  royal  grants  made  with  or  without  the  consent  of  the 
witan;  and  that  by  virtue  of  such  grants  jurisdiction  ceased 
to  be  exclusively  a  public  trust,  and  often  became  a  private 
right  accompanying  the  possession  of  land.  In  some  instances 
these  private  jurisdictions  embraced  large  districts,  but  usu- 
ally only  the  jurisdiction  of  a  hundred.  As  a  general  rule 
the  law  court  created  by  royal  grant  was  simply  a  hundred 
court  in  private  hands.2 

During  the  period  that  intervened  between  Eadgar  and  From 
William  (958-1066)  the  national  unity,  established  through  wjiifam  ° 
a  premature  and  imperfect  concentration  of  powers  around  ( 
a  single  throne,  was  constantly  strained  and  weakened  by 
the  counter  force  of  the  feudal  and  provincial  spirit.    The 
political    history  of    that   century    is    the    history  of    the 
struggle  between  the  power  of  the  nation  as  embodied  in  the 
crown  and  the  provincial  power  asserted  by  the  great  ealdor- 
men  who  were  ever  striving  in  the  direction  of  feudal  isola- 
tion.   The  greatest  defect  in  the  political  system  as  a  whole  Lack  of 
arose  out  of  the  weakness  of  the  tie  that  bound  the  central  between 


powers  of  the  state  to  the  local  machinery  of  the  constitution. 
There  was  a  want  of  strong  organic  connection  between  the  powers 
king  and  the  witan,  as  the  representatives  of  the  nation, 
and  the  system  of  provincial  organization  embodied  in  the 
shires.  In  the  struggle  between  the  contending  forces  the 
defensive  power  of  the  nation  was  broken;  the  spirit  of  dis- 
union and  disorder  which  was  ever  assailing  the  foundations 
of  the  throne  was  equally  ready  to  paralyze  the  national  arm 

1  There  is  no  evidence  before  the  reign  of  Cnut  (see  Dr.  K.  Maurer,  Kritische 
Ueberschau,  ii.  58)  ;  no  conclusive  evidence  before  the  reign  of  Eadward  the 
Confessor  (Essays  in  Anglo-Saxon  Law,  pp.  27-54).  See  also  Taylor,  The 
Origin  and  Groivth  of  the  English  Institution,  i.,  pp.  207  sq. 

a  Digby,  Law  of  Real  Property,  p.  15.  "  The  machinery  of  the  hundred  court 
would,  however,  be  preserved,  except  that  the  territorial  court  would  be  by 
the  great  man  or  his  representative." 


240 


THE  SCIENCE  OF  JURISPRUDENCE 


Feudal 
tendency 
to  disrup- 
tion checked 
by  God- 
wine. 


Local 

dissensions 

made 

Norman 

Conquest 

possible. 


Norman 
duchy  and 
its  dukes. 


Colony  at 
Rouen,  911. 


in  the  presence  of  the  invader.  The  history  of  the  reign 
of  Eadward  the  Confessor  is  simply  a  continuation  of  the 
struggle  of  the  great  nobles,  whose  authority  completely 
overshadows  that  of  the  king.  The  feudal  tendency  to  dis- 
ruption does  not  prevail  simply  because  the  great  Earl  God- 
wine,  who  is  striving  to  win  the  crown  for  his  own  house, 
is  strong  enough  to  counteract  it.1  Upon  his  death  (1053) 
the  earldom  of  the  West  Saxons  passed  to  his  son  Harold, 
who  for  twelve  years  stood  forth  as  the  real  master  of  the 
realm.  When  the  death  of  the  childless  Eadward  had 
removed  the  last  obstacle  from  his  path,  the  mighty  son  of 
Godwine  was  elected  by  the  witan  to  the  vacant  throne. 
But  it  was  impossible  even  for  Harold  to  bind  together  the 
broken  power  of  the  kingdom  with  the  great  earldoms  of 
Mercia  and  Northumbria  in  the  hands  of  two  jealous  rivals, 
Eadwine  and  Morkere,  whose  treacherous  policy  really 
opened  the  way  for  the  Norman  Conquest.  Under  the  heel 
of  the  stranger  the  English  nation  for  the  first  time  awoke 
to  a  full  sense  of  its  oneness.2 

7.  Early  in  the  tenth  century,  while  the  great  struggle 
between  Paris  and  La6n  was  still  in  its  infancy,  the  inroads 
of  the  Northmen  passed  from  a  stage  of  mere  piratical  incur- 
sion to  one  of  conquest  and  settlement.  But  of  the  many 
Scandinavian  colonies  then  planted  in  Gaul,  only  one  was 
destined  to  preserve  a  distinctive  character,  and  to  leave  its 
impress  upon  the  history  of  Europe.  This  was  the  Danish 
colony,  planted  in  911  by  Rolf  or  Hollo  at  Rouen.  At  this 
moment,  when  the  history  of  Rolf  clearly  emerges  from  the 
legends  that  surround  it,  Duke  Robert  of  Paris  stands  as  the 

1  "Policy  led  the  earl,  as  it  led  his  son,  rather  to  aim  at  winning  England 
itself  than  at  breaking  up  England  to  win  a  mere  fief  in  it. "     Green,  History  of 
English  People,  i.  105. 

2  "When  Harold,  imitating  the  Capetians,  raised  himself  to  the  throne,  the 
natural  consequence  would  seem  to  have  been  that  England  should  share  the 
fate  of  France.     To  have  prevented  this  was  the  one  great  service  which  Wil- 
liam rendered  to  mankind."     North  American  Review  for  July,  1874,  p.  238. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  241 

vassal  of  Charles  the  Simple,  who  then  represented  the  royal 
house  at  La6n.  It  was  with  King  Charles  that  Rolf  made 
the  peace  of  Clair-on-Epte  in  912;  and  it  was  from  King 
Charles  that  Rolf  received  the  grant  of  the  district  of  country 
on  both  sides  of  the  Seine  which  he  held  already  by  the  sword. 
The  original  grant  to  Rolf  did  not  embrace,  however,  all  Original 
of  the  later  Normandy.  The  Teutonic  district  of  Bayeux  *  f^if. 
was  not  won  until  a  few  years  before  Rolf's  death;  and  it 
was  not  until  the  reign  of  his  successor,  William  Longsword 
(927-943),  that  the  limits  of  the  duchy  were  extended  by 
the  acquisition  of  the  districts  of  Avranches  and  Coutances.2 
If  any  records  ever  existed  touching  the  details  of  the  settle- 
ment made  by  Rolf  and  his  followers  at  Rouen,  or  touching 
the  legal  and  political  institutions  planted  by  them  in  Gaul, 
they  have  utterly  perished.  There  are  no  chronicles,  no  char- 
ters to  guide  us;  of  the  internal  organization  of  the  Norman 
duchy  in  the  early  days  of  its  history  we  know  absolutely 
nothing.  It  seems,  however,  to  be  clear  that  the  express  condition 
condition  upon  which  the  grant  to  Rolf  was  made  was  that  j^^LT 
the  new  settlers  should  become  members  of  the  Christian 
and  Frankish  commonwealth  of  which  Charles  was  overlord.3 
And  it  also  seems  to  be  clear  that  the  Norman  dukes  from  the 
very  beginning  ruled  not  as  absolute  sovereigns,  but  with 
the  advice  of  some  kind  of  an  assembly  or  council  of  great 
men.4  As  the  time  for  the  conquest  of  England  approaches 
the  duke  consults,  or  professes  to  consult,  the  magnates  of 
his  realm,  lay  and  spiritual,  the  optimates,  the  proceres  of  An 
Normandy.  The  court  he  holds  may  not  yet  be  called  a  court 

1  As  to  the  history  of  the  Saxons  of  Bayeux,  see  Lappenberg,  Anglo-Norman 
Kings,  p.  2.  a  Freeman,  Norman  Conquest,  i.  118-123. 

3  The  Peace  of  Clair-on-Epte  (918)  was  the  duplicate  of  the  Peace  of  Wed- 
more  (878). 

*  Extreme  views  on  this  subject  are  marked  at  one  end  by  Palgrave  (Nor- 
mandy and  England,  ii.  258  sq.)  and  at  the  other  by  Steenstrup,  Inledning  i 
Normannertiden.     Copenhagen,  1876.     There  is  a  French  translation  of  the  lat- 
ter in  the  Bulletin  de  la  Sotiete  des  antiquaires  de  Normandie,  vol.  x.,  p.  185. 
H 


242  THE  SCIENCE  OF  JURISPRUDENCE 

of  his  tenants  in  chief,  but  it  is  an  assembly  of  magnates  who 
Lower  are  his  vassals.  It  also  appears  that  in  the  lower  courts 
the  lord  of  the  court  is  not  the  only  judge;  he  is  surrounded 
by  doomsmen.1  In  the  reign  of  the  third  duke,  Richard  the 
Fearless,  the  duchy,  after  fluctuating  in  its  allegiance  between 
the  king  at  Laon  and  the  duke  at  Paris,  permanently  attached 
itself  to  the  latter,  and  from  that  time  the  duchy  grew  more 
French,  more  Christian,  and  more  feudal.2  It  is  in  the  reign 
of  Richard  that  we  can  first  trace  the  beginnings  of  the  Nor- 
Norman  man  nobility  whose  numbers  derive  their  status  as  nobles 
either  from  ancient  Norse  descent  from  the  companions  of 
Rolf  or  through  connections,  legitimate  or  illegitimate,  with 
the  ducal  house.  The  baronage  which  thus  grew  up  held  their 
lands  of  the  duke  upon  terms  of  feudal  obligation,  and  by  his 
strong  hand  alone  were  they  held  in  subjection.3  Over  this 
turbulent  baronage,  William  the  Bastard,  while  yet  a  minor, 
was  called  to  rule;  and  his  first  important  victory  was  won 
in  crushing  a  widespread  revolt  headed  by  some  of  the  greatest 
nobles  of  his  own  dukedom. 

Normans          No  matter  whether  for  a  century  or  more  after  their  settle- 
to  language   ment  in  Neustria  the  law  of  the  Northmen  or  Normans  was 
and  law.       mainly  Frankish  or  mainly  Scandinavian.    It  is  now  generally 
conceded  that  for  at  least  fifty  years  before  the  Conquest 
of  England  the  Normans  were  Frenchmen,  both  as  to  lan- 
guage and  law.    While  their  written  language  was  Latin, 
the  Latin  of  France,  their  spoken  language  was  French.     Not 
only  had  the  Normans  adopted  a  Romance  tongue,  but  their 
dukes  had  adopted  the  official  machinery  of  Frankish  gov- 
ernment, including,  of  course,  whatever  Roman  elements  had 

1  In  a  suit  heard  in  1086  in  the  court  of  Robert  of  Belldme  he  presides,  but 
three  abbots,  nine    named  laymen,  and  many  others    are    the  jvdices   hujut 
pLaciti.     Neustria  Pia,  311. 

2  Freeman,  Norman  Conquest,  i.  149,  169. 

*  Richard  the  Fearless  is  regarded  as  the  founder  of  Norman  feudalism. 
Normandy  and  England,  ii.  534.  See  also  Waitz,  GoUingische  Gelehrte  Anzeigen, 
Nachrichten,  February  14,  1866,  pp.  95,  96. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  248 

been  taken  up  by  the  Franks.  In  that  way  the  Normans 
were  drawn  into  close  contact  with  that  peculiar  system  of 
legal  and  political  ideas,  distinctly  of  Frank  origin  and  gen-  Contact 
erally  known  as  feudalism,  which  finds  its  historical  develop-  feudalism, 
ment  upon  the  soil  of  Gaul,  where  it  matures  not  unaffected 
by  Roman  influences.1  That  system  can  only  be  clearly 
understood  as  a  whole  when  it  is  viewed  in  the  two  aspects 
in  which  it  naturally  presents  itself,  —  as  a  system  of  land 
tenure  and  as  a  system  of  government.  Feudalism  was  the 
result  of  the  union  of  two  great  elements.  One  element  con-  its 
sisted  of  the  personal  relation  that  grew  up  between  lord  and 
vassal,  lord  and  man,  —  a  relation  involving  menial  service, 
responsibility,  and  protection,  but  at  first  not  necessarily 
connected  with  the  holding  of  land.2  By  the  practice  of 
commendation  the  inferior  put  himself  under  the  personal  Commen- 
care  of  a  lord,  without  altering  his  title  or  divesting  himself 
of  his  right  to  his  estate.3  Another  element  was  represented 
by  the  beneficium,  which  was  partly  of  Roman,  partly  of  Ger- 
man  origin.  A  practice  had  arisen  in  the  empire  of  granting 
out  frontier  lands  to  soldiers  upon  condition  of  military  serv- 
ice in  border  warfare.4  But  the  holders  of  such  lands  stood 
in  no  personal  relation  to  the  emperor;  they  were  not  his 
men ;  their  service  was  only  due  to  him  as  the  head  of  the  state. 
That  Roman  custom  naturally  suggested  to  the  Teutonic 
kings  the  plan  of  rewarding  their  followers  out  of  their  own 
estates  with  grants  of  land  —  benefices  or  fiefs  5  —  with  a 

1  The  feudal  system  par  excellence  is  always  understood  to  mean  that  special 
form  of  feudalism  developed  on  the  soil  of  Gaul  by  the  conquering  Franks. 

2  Digby,  Law  of  Real  Property,  p.  21. 

1  Stubbs,  Constitutional  History,  i.  253. 

4  Palgrave,  English  Commonwealth,  i.  354. 

*  On  the  Continent  when  the  word  feodum  is  traced  back  it  becomes  inter- 
changeable with  beneficium,  and  as  we  go  further  back  we  find  beneficium  inter- 
changeable with  the  Roman  precarium,  which  is  now  generally  admitted  to  be 
one  of  the  germs  of  feudalism.  Waitz,  Deutsche  Verfassungsgeschichte,  ii.  229 ; 
Brunner,  Deutsche  Rechtsgeschichte,  i.  211;  Fustel  de  Coulanges,  Le  benlfice  et 
le  patronat.  Even  in  the  Digest,  43,  26,  14  (Paulus),  the  two  words  precarium 
and  beneficium  are  brought  into  contact,  "magis  enim  ad  donationes  et  bene- 


244 


THE  SCIENCE  OF  JURISPRUDENCE 


Origin  of 
Frank 
beneficiary 
system. 


Capitulary 
of  Kiersi 
and  its 
effects. 


Grants  of 

immunity. 


special  undertaking  to  be  faithful  in  consideration  of  the 
gift.  The  Frank  beneficiary  system  originated  in  gifts  of 
this  character  and  in  the  surrender  of  allodial  estates  made 
by  the  owners  to  lay  or  ecclesiastical  potentates,  to  be  received 
back  and  held  by  them  as  tenants  by  rent  or  service.1  Through 
the  union  or  interpenetration  of  the  beneficiary  system  and  the 
system  of  commendation,  the  idea  of  feudal  obligation  became 
complete,  both  being  fostered  by  the  growth  of  immunities.2 
The  beneficia  finally  received  the  name  of  feuda,  a  word  which 
does  not  appear  earlier  than  the  close  of  the  ninth  century.3 
The  viscounts  and  barons  of  Normandy  held  beneficia,  feoda, 
honores  of  the  duke,  and  in  return  they  owed  him  military 
service,  though  the  precise  amount  of  it  may  not  have  been 
fixed.4  As  early  as  877  Charles  the  Bald,  by  a  clause  in  the 
Capitulary  of  Kiersi,  recognized  the  hereditary  character  of 
all  benefices ; 5  and  the  principle  that  benefices  were  heredi- 
tary was  soon  extended  to  the  framework  of  government 
itself.  The  provincial  magistracies,  originally  received  by 
the  dukes  and  counts  through  the  king's  appointment,  and 
which  tended  from  the  first  to  become  hereditary,  actually 
became  so,  as  soon  as  the  hereditary  character  of  benefices 
was  firmly  established.  The  local  sovereignty  of  the  official 
magistrate,  who  thus  grew  into  a  ruler  by  hereditary  right, 
was  greatly  enhanced  by  grants  of  immunity,  which  were 
nothing  more  nor  less  than  sections  of  the  royal  right  of  judi- 
cature bestowed  upon  the  receiver  of  a  fief.  Through  grants 
of  immunity  the  dwellers  upon  feudal  estates  were  withdrawn 
from  the  jurisdiction  of  the  royal  tribunals  and  placed  under 

ficii  causam  quam  ad  negotii  contract!  spectat  precarii  conditio."  See  also 
Pollock  and  Maitland,  History  of  English  Law,  i.  67-68. 

1  Maine,  Ancient  Law,  p.  224,  "Allods  and  Fiefs." 

»  Waitz,  loc.  tit.,  ii.  634-635. 

3  Digby,  Law  of  Real  Property,  p.  32. 

4  William  the  Conqueror  gave  to  the  church  of  Lisieux  "terrain  de  Fontaines 
.  .  .  et  servitium  militum  .  .  .  dominium  cum  multibus  quod  dedit  Olilia." 
Neustria  Pia,  585 ;  Gall.  Christ,  xi.  Instrum.,  p.  203. 

•  See  Baluze,  ii.  179 ;    Roth,  Beneficialwesen,  p.  420. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  245 

that  of  the  lord  on  whose  land  they  dwelt.1    To  the  right  of 

judicature  the  hereditary  ruler  gradually  added  all  the  other 

attributes  of  actual  sovereignty.    So  intense  did  the  idea  of 

sovereignty  in  the  provincial  lord  become,  that  the  doctrine 

was  finally  asserted,  that  a  man  who  pledged  his  faith  to  a 

lord,  who  was  the  man  of  the  king,  was  the  man  of  that  lord 

only,  arid  not  the  man  of  the  king  himself.2    The  natural  re- 

sult of  such  a  system  was  the  complete  attenuation  of  the  Attenuation 

central  power.     In  theory  the  king  remains  the  supreme  lord,  ^ower.™ 

mediate  or  immediate,  of  every  landowner,  and  to  him  great 

duties  are  due;   but  the  royal  power  is  reduced  in  fact  to  a 

mere  shadow.    With  the  destructive  effects  of  Frank  feudal- 

ism upon  the  central  or  national  authority,  William,  as  duke 

of  the  Normans,  became  thoroughly  familiar;  and,  as  we  its  effect  on 

shall  see  hereafter,  he  turned  such  knowledge  to  good  account.  English*  8 


As  king  of  the  English,  William  was  careful  to  devise  such 
anti-feudal  legislation  as  would  render  the  disruptive  tenden- 
cies of  the  Frank  system  impossible  in  England. 

From  what  has  just  been  said  it  appears  that  the  Scan-  Normans 
dinavian  founders  of  the  Norman  duchy  were  far  behind  their 
English  brethren  in  the  production  of  written  memorials  of 
their  early  laws.  They  have  nothing  corresponding  with  the 
laws  of  Eadward  the  Elder,  Aethelstan,  Eadmund,  Eadgar, 
Aethelred,  and  Cnut,  or  with  the  land  books  and  writs  supplied 
by  the  England  of  the  same  period.  They  have  nothing  to 
set  against  the  great  record  of  Domesday  or  against  the  law 
books  known  as  the  Leges  of  the  Confessor,  the  Conqueror, 
and  Henry  the  First.  The  oldest  financial  3  and  judicial 

1  Waitz,  loc.  tit.,  ii.  634-645. 

a  Cf.  Freeman,  Norman  Conquest,  iv.  472,  and  note  1,  in  which  reference  is 
made  to  the  refusal,  at  a  somewhat  later  time,  of  John  of  Joinville,  as  the  man  of 
the  court  of  Champagne,  to  take  any  oath  to  St.  Lewis  ;  citing  M&moires,  p.  37, 
ed.  Michel.  Paris,  1858. 

3  Magni  Rotuli  Scaccarii  Normanniae  sub  Regibus  Angliae,  reprinted  in 
Mimoires  de  la  Soci&t  des  antiquaires  de  Narmandie,  vol.  xv.  A  fragment  of 
the  roll  of  1184  was  published  by  Delisle,  Caen,  1851. 


246 


Oldest  law 
books. 


World- 
famous 
jurist  of 
Pa  via, 

Lan  franc. 


Became 
primate  of 
England. 


records  *  as  they  have  come  down  to  us  are  of  much  later  date 
than  the  parallel  English  documents.  Their  oldest  law  books, 
two  small  treatises  now  blended  and  published  under  the 
title  Le  trks  ancien  Coutumier,  are  more  recent  and  less  pre- 
tentious than  Glanvill,  while  the  Grand  Coutumier,  if  not 
more  recent,  is  less  pretentious  than  Bracton.2  As  great 
jurists  have  told  us,  "not  only  had  the  Normans  no  writ- 
ten law  of  their  own  making;  there  was  none  that  they 
could  readily  borrow  from  their  French  neighbors.  Their 
invasions  occurred  in  the  very  midnight  of  the  legal  his- 
tory of  France;  indeed,  they  brought  the  midnight  with 
them."*  But  destitute  as  the  Normans  were  of  written  law, 
William  had  at  his  side  a  world-famous  jurist  of  Pavia,  the 
most  accomplished  of  pleaders,  who  knew  Lombard  law,  Ro- 
man law,  and  canon  law.4  While  still  a  layman  Lanfranc  left 
Italy  for  Normandy  and  opened  a  secular  school  at  Avranches, 
in  which  he  may  have  taught  law  as  well  as  grammar  and  rhet- 
oric. Upon  this  Italian  abbot  from  Normandy,  who  became 
a  master  of  English  law,5  the  primatial  see  of  Canterbury  was 
bestowed  as  soon  as  it  could  be  made  vacant  by  the  deposition 
of  Stigand.6  With  the  aid  of  Lanfranc,  William  inaugurated 
the  new  ecclesiastical  policy  which  contemplated  the  com- 
plete severance  of  spiritual  from  temporal  business  through  the 
creation  of  distinct  courts  and  councils  in  which  the  church 
could  judge  and  legislate  upon  its  own  affairs  without  secular 
interference.7 

1  See  Delisle,  Recueil  de  jugements  de  I'echiquier  de  Normandie  au  XIIIme 
sitcle.     Paris,   1864.     For  a  collection  of  judgments  delivered  in  the  assizes 
between    1234  and    1237,    see   Warnkonig,  Franzosische  Stoats-  und  Rechtsge- 
schichte,  vol.  ii.  Urkunderibuch,  pp.  48-69. 

2  The  Latin  text  has  been  lately  edited  by  E.  J.  Tardif  under  the  title  Somma 
de  Legibus  Normannie,  1896. 

*  Pollock  and  Maitland,  History  of  English  Law,  i.  65,  2d  ed. 

*  See  above,  p.  149. 

8  He  waxed  eloquent  even  over  sake  and  sake  and  flymena-fyrmft .     Selden> 
Eadmer,  197 ;  Placita,  Anglo-Normannica,  7. 

*  Vita  Lanfr.,  Giles,  i.  19,  20,  293 ;  Flor.  Wig.  1070. 

7  See  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i.  339. 


247 

8.   It  is  a  mistake  to  suppose  that  William's  victory  near  Norman 
Hastings,  crushing  as  it  was,  put  him  at  once  in  possession  of  England.  ° 
the  whole  realm.    As  the  immediate  result  of  the  battle  he 
only  gained  actual  possession  of  a  few  of  the  southern  shires ; 
but,  during  the  month  and  a  half  that  intervened  between  his 
victory  and  his  crowning  at  Westminster,  he  received  the  sub- 
mission of  all  southeastern  England  east  of  a  line  roughly 
extended  from  the  Wash  to  Southampton  Water.1    With 
the  fact  in  mind  that  the  advance  of  the  Conquest  was  gradual,  its  advance 
it  is  easier  to  understand  the  manner  in  which  William  dealt  *"" 
with  the  land,  which,  district  by  district,  became  subject  to 
his  authority.    The  theory  upon  which  the  Conqueror  claimed 
title  to  the  lands  of  the  conquered  was,  that  he,  the  heir  of 
Eadward,  upon  coming  to  take  possession  of  his  kingdom,  had 
been  opposed  either  actively  or  passively  by  the  whole  nation, 
who,  by  the  customary  laws  of  both  England  and  Normandy, 
had  thus  become  involved  in  the  guilt  of  treason.2    Under 
the  strict  letter  of  the  law,  the  lands  of  all  were  forfeited  to 
the  king,  but  the  application  of  this  principle  William  under-  Application 
took  to  regulate  according  to  the  circumstances  of  individual  of  forfeiture, 
cases.    While  there  can  be  no  doubt  that  through  the  enforce1 
ment  of  that  principle  the  bulk  of  all  the  great  estates  passed 
during  William's  reign  into  Norman  hands,  it  seems  to  be 
equally  clear  that  the  main  body  of  the  people,  the  actual  oc- 
cupants of  the  soil,  remained,  as  a  general  rule,  undisturbed 
in  their  possessions.     William  was  himself  enriched  by  becom- 
ing the  possessor  of  the  private  estates  of  his  royal  prede- 
cessors, and  by  all  the   folkland   becoming  terra  regis.     In  Terra  regis. 
some  instances  express  mention  is  made  of  men's  buying  back 
their  lands  from  the  king,  and  from  the  joint  witness  of  the 
Chronicle  and  Domesday  it  appears  that  at  some  time  soon 
after  the  coronation  of  William  the  English  as  a  body  redeemed 

1  For  a  graphic  account  of  "The  Conquest  of  Western  and  Northern  England," 
see  Freeman,  Norman  Conquest,  vol.  iv.,  ch.  xviii. 

2  Digby,  Law  of  Real  Property,  pp.  34,  35. 


248  THE  SCIENCE  OF  JURISPRUDENCE 

their  lands.1  There  is  no  evidence,  however,  going  to  show 
that  William  directly  or  systematically  introduced  any  new 
kind  of  tenure ;  the  grantee  of  William,  whether  an  old  owner 
or  a  new  one,  held  his  land  as  it  had  been  held  in  the  days  of 
King  Eadward.  There  is  nothing  in  Domesday  which  es- 
tablishes the  existence  of  military  tenures  as  they  were  after- 
Fusion  of  wards  understood.2  By  the  coming  of  William  two  kindred 
systems  of  systems  of  land  tenure,  both  tending  in  the  same  direction 
and  yet  in  different  stages  of  development,  were  brought  into 
the  closest  contact,  and  out  of  the  fusion  between  the  two  has 
arisen  the  feudal  mode  of  holding  land  embedded  in  the  Eng- 
lish common  law.  The  great  outward  show  of  legality  under 
which  William  endeavored  to  conceal  the  fact  that  he  was 
a  foreign  conqueror  was  but  a  part  of  a  deliberate  policy  which 
has  marked  him  as  one  of  the  foremost  statesmen  of  the  world. 
By  claiming  to  be  the  heir  of  Eadward,  he  connected  himself 
directly  with  the  line  of  national  kings  that  had  gone  before 
him;  by  insisting  upon  his  elevation  to  the  royal  office  by 
the  choice  of  the  witan  he  obtained  the  highest  confirmation 
of  his  title  that  could  be  drawn  from  the  ancient  constitution ; 
by  seeking  consecration  at  the  hands  of  an  English  prelate, 
and  by  taking  the  usual  coronation  oaths,  he  complied  at 
once  with  every  prerequisite  to  full  kingship  prescribed  by 
William  a  ancient  custom  and  by  the  national  church.  By  means  of 
kmg°as  well  these  outward  forms  William  clearly  proclaimed  the  fact,  not 
as  feudal  jj  ^Q  fae  conquered  English  but  to  his  Norman  followers, 

conqueror.  * 

that  he  would  rule  in  his  new  realm,  not  as  a  mere  feu- 
dal conqueror,  but  as  a  national  king.  The  sum  of  royal 
power  which  thus  accrued  to  William  was  augmented  by 
the  addition  of  every  feudal  right  that  tended  to  increase 
the  royal  revenue  and  to  strengthen  the  royal  authority; 
while  every  principle  was  carefully  eliminated  that  tended 

1  E.  Chron.  1066.     Domesday  (ii.  360)  tells  of  a  time  when  the  English  as  a 
body  redeemed  their  lands. 

2  See  Palgrave,  Normandy  and  England,  iii.  609  sq. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  249 

to  promote  the  disruptive  tendencies  of  feudal  institutions. 
As  king  of  the  English  William  was  careful  to  preserve  the 
law  of  the  land  as  it  stood  in  the  days  of  King  Eadward,1 
and  along  with  it  those  ancient  assemblies  of  the  shire  and  the 
hundred  in  which  it  had  been  immemorially  administered.3 
As  feudal  lord,  William  firmly  established  the  doctrine  that 
the  king  was  the  supreme  landlord,  and  that  all  land  was  held 
by  grant  from  him.  In  his  time  the  folkland  became  terra 
regis.  All  landholders  thus  became  tenants  of  the  king,  and 
under  William's  successors  the  feudal  revenue  of  the  crown 
from  that  source  was  enormous.  It  was  William's  policy  to 
introduce  but  one  side  of  feudalism,  —  to  accept  it  as  a  sys-  Feudalism 
tern  of  tenure,  but  not  as  a  system  of  government.  And  in  cepted"  as 


thus  drawing  to  the  crown  all  the  available  benefits  of  the  sys- 
tern  he  was  careful  to  guard  against  its  disruptive  tendencies  : 
first,  by  preventing  the  accumulation  in  the  hands  of  the  great 
feudatories  of  any  considerable  number  of  contiguous  estates  ;  3 
second,  by  requiring  from  all  freeholders  an  oath  that  bound  Oath  of 
them  directly  to  the  king  by  the  double  tie  of  homage  and  allegiance0 
allegiance.4  To  every  landowner  the  Conqueror  stood  in 
the  double  relation  of  landlord  and  sovereign.  During 
William's  reign  the  royal  power  was  greatly  strengthened 
and  consolidated;  the  tendency  to  provincial  isolation  was 
crushed  out;  the  four  great  earldoms  were  abolished;  and 
the  whole  realm  at  last  united  in  one  consolidated  kingdom 
never  afterward  to  be  divided. 

After  the  coming  of  William  the  continuity  of  the  old  Continuity 
national  assembly  went  on  unbroken.     In  legal  theory,  at  assembly. 

1  With  such  additions  as  he  himself  made  for  the  benefit  of  the  English. 
Statutes  of  William,  §  7. 

2  "Requiratur  hundredus  et  comitatus,  sicut  antecessores  nostri  statuerunt." 
Ibid.  §  8. 

1  Thorpe,  Lappenburg,  iii.  201  ;  Gneist,  Self  -Government,  i.  66,  67. 

4  In  the  gemot  of  Salisbury  all  the  landowners  of  England  "whose  men  soever 
they  were,  all  bowed  to  him  and  were  his  men,  and  swore  to  him  faithful  oaths 
that  they  would  be  faithful  to  him  against  all  other  men."  E.  Chron.  1086. 


250 


THE  SCIENCE  OF  JURISPRUDENCE 


Right  to 
elect  king 
still  recog- 
nized. 


New  feudal 
theory  of 
hereditary 
descent. 


National 
assembly 
as  court  of 
feudal 
vassals. 


least,  what  the  witan  was  in  the  days  of  King  Ead ward  it  seems 
to  have  remained  in  the  days  of  King  William.  In  the  forms 
of  legislation  change  there  was  none.  William  legislates, 
like  his  English  predecessor,  "with  the  common  council  and 
counsel  of  the  archbishops,  bishops,  abbots,  and  all  the  princes 
of  the  kingdom."  *  The  formal  right  of  the  witan  to  elect 
the  king  is  still  distinctly  recognized.  William  is  elected  before 
he  receives  the  crown  at  Westminster;  Henry  admits  that 
he  owes  his  election  to  the  barons ; 2  while  Stephen  rests  his 
claim  on  the  broader  basis  of  a  choice  by  the  clergy  and  the 
people.3  At  the  coronation  the  people  still  formally  accept 
the  king  elected  by  the  national  assembly,  and  the  king 
upon  his  part  still  takes  the  oath  of  good  government,  whose 
pledges  are  expressed  in  the  form  of  charters.  The  elective 
principle  survives  with  diminishing  force  until  it  is  finally 
extinguished  in  the  time  of  the  Angevins  by  the  new  feudal 
theory  of  hereditary  descent.  From  the  mention  made  by 
Henry  of  an  aid  that  his  barons  had  given  him,  it  may  be  in- 
ferred that  the  king  as  of  old,  with  the  advice  of  the  great 
council,  laid  taxes  upon  his  people.4  A  great  change,  however, 
took  place  in  the  composition  of  the  witan.  At  the  begin- 
ning of  William's  reign  those  who  composed  the  council  that 
ordinarily  gathered  around  the  king  were  a  body  of  English- 
men ;  by  the  end  of  his  reign  this  body  had  gradually  changed 
into  an  assembly  of  Normans,  among  whom  an  Englishman 
here  and  there  held  his  place.  As  the  king's  thegns  became 
his  tenants-in-chief ,  the  national  assembly  of  wise  men  grad- 
ually became  the  king's  court  of  feudal  vassals,  whose  right 

1  Thorpe,  Ancient  Laws,  p.  213.     See  William's  ordinance  separating  the 
spiritual  and  temporal  courts. 

*  See  preamble  to  charter  of  Henry  I.,  Ancient  Laws,  p.  215. 

3  "Ego  Stephanus  Dei  gratia  assensu  cleri  et  populi    in   regem  Anglorum 
electus."     See  second  charter  of  Stephen,  Statutes  of  the  Realm,  Charters  of 
Liberties,  p.  3. 

4  Henry  I.  speaks  of  an  aid  as  "auxilium  quod  barones  mihi  dederunt. " 
Chronicle  of  Abingdon,  ii.  113.     See  First  Report  on  the  Dignity  of  a  Peer,  pp.  38, 
39. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  251 

to  exercise  power  was  made  to  depend  practically  upon  the 
king's  pleasure.  The  effects  of  the  Conquest  on  kingship  and 
on  the  constitution  of  the  witan  were  diametrically  opposite 
in  their  results.  While  the  powers  of  the  witan  are  practically 
reduced  to  a  mere  shadow,  the  royal  authority  becomes  the 
central  and  dominant  force  in  the  constitution.  In  order 
to  discharge  the  vast  and  intricate  duties  which  the  growth 
of  the  royal  power  thus  concentrated  around  the  person  of 
the  king,  it  became  necessary  for  the  crown  to  organize  out  of 
the  main  body  of  the  great  council  a  smaller  body,  composed 
of  the  king's  immediate  officers  and  advisers.  The  royal 
household  of  the  Norman  kings  of  England  was  simply  a  Royal 
reproduction  of  the  ducal  household  of  Normandy ;  and  while  o 
it  is  difficult  to  determine  the  exact  dates  of  their  formation,  king8 
it  seems  to  be  clear  that  by  the  end  of  the  reign  of  Henry  II. 
the  offices  of  high  steward,  butler,  constable,  and  chamberr 
lain  had  become  hereditary  in  England.1  Among  the  new 
ministerial  offices  which  did  not  become  hereditary,  those 
of  the  justiciar,  the  chancellor,  and  the  treasurer  rise  to 
the  greatest  constitutional  importance.  This  inner  council, 
known  by  the  name  of  curia  regis,  and  which  during  the  The 
Norman  reigns  drew  to  itself  the  whole  central  administration 
of  justice  and  finance,  has  given  birth  not  only  to  every  court 
of  law  or  equity  in  which  justice  is  administered  in  the  king's 
name,  but  also  to  the  entire  administrative  machinery  of  the 
constitution.  As  a  legal  tribunal  the  jurisdiction  of  the 
curia  was  both  civil  and  criminal,2  original  and  appellate. 
It  followed  the  person  of  the  king,  or  of  the  justiciar  in  the 

1  Under  the  Frank  kings  and  emperors  the  four  great  officers  of  the  court  and 
household  were  the  steward,  the  butler,  the  marshal,  and  the  chamberlain. 
G.  L  von  Maurer,  Hofverfassung,  i.  189.  These  offices,  which  became  heredi- 
tary and  which  continued  down  to  the  latest  days  of  the  Empire,  passed  with 
slight  modifications  to  the  lowlier  court  of  the  Norman  dukes,  where  they  had 
begun  to  be  hereditary  before  the  conquest  of  England.  Freeman,  Norman 
Conquest,  v.  287. 

*  Madox,  History  of  the  Exchequer,  p.  70. 


252 


THE  SCIENCE  OF  JURISPRUDENCE 


Financial 
side  known 
as  ex- 
chequer. 


Six  circuits 
of  the 
Justitiarii 
Itinerantes. 


Effects  of 
Conquest 
on  local 
organiza- 
tion. 


king's  absence,  and  twice  in  every  year  it  held  sessions  at 
Westminster  in  order  to  transact  with  the  sheriffs  the  finan- 
cial business  of  the  kingdom.  From  the  chequered  cloth 
that  covered  the  table  at  which  the  accounts  were  taken, 
the  financial  session  of  the  curia  took  the  name  of  exchequer.1 
In  the  course  of  the  assessment  and  collection  of  the  revenue, 
which  was  the  chief  work  of  the  curia  as  a  financial  body, 
local  disputes  so  constantly  arose  that  it  became  necessary 
to  send  detachments  of  justices  to  adjust  the  business  of  the 
exchequer  in  each  shire.  As  early  as  the  reign  of  Henry  I., 
officers  of  the  exchequer  were  frequently  sent  through  the 
country  to  assess  the  revenue ; 2  and  in  the  reign  of  his  grand- 
son, Henry  II.,  this  custom  was  enforced  with  systematic 
regularity.  The  justices  while  thus  engaged  in  provincial 
business  sat  in  the  shire  moots,  where  judicial  work  soon  fol- 
lowed in  the  path  of  their  fiscal  duties.  In  1176  3  the  king- 
dom was  divided  into  six  circuits,  to  each  of  which  were 
assigned  three  justices,  who  are  now  for  the  first  time  given 
in  the  Pipe  Rolls  the  name  of  Justitiarii  Itinerantes.  The 
fiscal  visitations  of  the  justices  from  the  exchequer  led  to  the 
establishment  of  those  judicial  visitations  which  have  ever 
remained  an  abiding  feature  in  English  judicature.4 

The  foregoing  outline  of  the  vigorous  and  compact  system 
of  central  administration  to  which  the  Norman  Conquest  gave 
birth  should  be  followed  by  an  attempt  to  trace  the  effects  of 
the  Conquest  on  the  tenacious  substructure  of  Old-English 
local  freedom  upon  which  the  Norman  central  system  was 

1  Dialogus  de  Scaccario,  i.  1. 

2  The  single  Pipe  Roll  of  the  thirty-first  year  of  Henry  I.  exhibits  a  system  of 
iters  by  the  royal  officers  in  regular  working  order.     See  also  DiaJagus  de  Scac- 
cario, i.,  c.  7. 

*  It  was  not  until  1166  that  the  judicial  eyres  became  annual  and  general. 
2  Benedictus,  pref.  64 ;  Bigelow,  Legal  Procedure,  p.  14.  The  division  into 
circuits  was  provided  for  in  the  Assize  of  Northampton.  For  a  list  of  them,  see 
Reeves,  History  of  English  Law,  i.  273.  Also  Plac.  Anglo-Normannica,  p.  216. 

4  For  a  detailed  history  of  the  courts  of  assize,  see  Sir  J.  F.  Stephen,  History 
of  the  Criminal  Law  of  England,  i.  97-111. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  253 

superimposed.  As  the  Norman  superstructure  was  strongest 
in  the  higher  ranges  of  organization,  so  the  Old-English  sub- 
structure was  strongest  in  the  cohesion  of  its  lower  organ- 
isms, —  in  the  local  associations  of  the  township,  the  hun- 
dred, and  the  shire.  The  greatest  amount  of  change  that  took 
place  was  in  the  status  of  the  township,  which,  in  the  "pro-  The 
cess  of  feudalization,"  underwent  a  marked  transformation.  townshiP- 
The  evidence  seems  to  justify  the  conclusion  that,  before  the 
Norman  Conquest,  all  townships  had,  as  a  rule,  become  de- 
pendent; that  is,  the  title  to  the  land  occupied  by  the  once 
free  community  had  become  vested  in  a  lord,  and  the  depend- 
ent townsmen  had  become  his  men,  or,  in  the  language  of 
later  times,  his  tenants.1  The  word  "manor"  2  is  of  Norman  "Manor,"  a 
introduction,  but  the  relation  of  a  lord  of  a  manor  and  his  township, 
tenants  substantially  existed  in  every  case  in  which  a  town- 
ship had  become  dependent  through  the  substitution  of  the 
lord  for  the  community.  The  manorial  system,  which  thus 
originates  in  Old-English  and  not  in  Norman  law,  assumed 
a  more  definite  form  in  the  hands  of  the  Norman  judges  and 
lawyers,  by  whom  the  legal  relations  between  the  lord  and 
the  smaller  holders  within  the  manor  were  more  exactly  de- 
fined. By  the  time  of  the  Domesday  Survey  the  territorial 
lordships  had  become  the  rule;  there  were  manors  every- 
where, and  "  the  manor  was  a  landlord's  estate  with  a  town- 
ship or  village  community  in  villeinage  upon  it,  under  the 
jurisdiction  of  the  lord  of  the  manor."  3  It  seems  to  have 
been  a  leading  feature  in  the  policy  of  William  to  maintain 
the  ancient  usages  of  the  English  nation  by  keeping  up  the 
administration  of  the  customary  law  in  the  popular  courts  of 

1  Essays  in  Anglo-Saxon  Law,  pp.  88-90 ;  Digby,  Law  of  Real  Property,  pp.  43, 
45. 

2  The  earliest  appearance  of  the  word  is  in  the  reign  of  Eadward  the  Confessor. 
Ellis,  Introduction  to  Domesday,  p.  225. 

*  Seebohm,  English  Village  Community,  p.  82.  At  the  date  of  the  Survey 
1422  manors  were  in  the  ancient  demesne  of  the  crown,  most  of  which  had  been 
royal  manors  in  the  days  of  King  Eadward.  Ellis,  Introduction  to  Domesday, 
p.  225. 


254 


THE  SCIENCE  OF  JURISPRUDENCE 


Courts  of 
shire  and 
hundred 
continued. 


Held  "as  in 
King  Ead- 
ward's  day, 
and  not 
otherwise. " 


the  shire  and  the  hundred.  He  confirmed  the  laws  that  had 
been  in  use  in  the  days  of  King  Eadward,  with  such  additions 
as  he  himself  had  made  for  the  benefit  of  the  English.1  From 
the  same  source  we  hear  of  the  continuance  by  him  of  the  courts 
of  the  shire  and  the  hundred.2  The  existence  of  these  courts 
in  the  succeeding  reign  of  William  Rufus  is  not  only  proven 
by  the  expressive  entry  in  the  Chronicle,  which  describes 
Ranalf  Flambard  as  "driving  all  the  gemots  throughout 
England,"  3  but  by  writs  addressed  to  the  shire  moot  through 
the  sheriff  and  other  leading  members.  From  the  language 
of  the  charter  in  which  Henry  I.  orders  the  holding  of  the  courts 
of  the  shire  and  hundred,  it  may  be  inferred  that  they  had 
been  used  in  the  preceding  reign  for  the  purpose  of  extraor- 
dinary exactions.  And  in  the  same  charter  Henry  says,  "I 
will  cause  those  courts  to  be  summoned  when  I  will,  for  my 
own  sovereign  necessities,  at  my  pleasure."  4  From  the  issue 
of  Henry's  charter  (1108-1112  A.D.)  onward,  the  local  courts 
are  held,  "as  in  King  Eadward's  day,  and  not  otherwise." 
From  the  Leges  Henrici  Primi,  as  they  are  called,  —  a  com- 
pilation later  than  his  reign,  —  we  learn  that,  after  the  Con- 
quest as  before,  the  shire  moot  was  attended  by  the  "thegns 
of  the  shire,"  5  by  the  parish  priest,  and  by  the  reeve  and  four 
selectmen  from  each  township.6  The  full  court  which  met 
twice  a  year  still  possessed  both  civil  and  criminal  jurisdiction 
exercised  according  to  the  old  forms  of  witness,  compurgation, 
and  ordeal.  A  great  innovation  in  the  proceedings  of  the 
popular  courts  now  arose  out  of  the  introduction  by  the 


1  Statutes  of  William,  §  7. 

2  "Requiratur  hundredus  et  comitatus,  sicut  antecessores  nostri  statuerunt." 
§8. 

»  Chron.  Petrib.  1099. 

«  See  Foedera,  i.  12 ;   Select  Charters,  p.  104. 

•  Leg.  Hen.  I.  vii.  2. 

•  "Si  uterque  necessario  desit,  praepositus  et  sacerdos  et  quatuor  de  meliori- 
bus  villae  assint  pro  omnibus  qui  nominatim  non  erunt  ad  placitum  submoniti. ". 
Leg.  Hen.  I.  vii.  7. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  255 

Normans  of  trial  by  battle.1    By  the  so-called  laws  of  Henry  I.  introduc- 
the  court  of  the  hundred  was  restored  as  it  had  been  in  the 
days  of  King  Eadward,  with  no  further  constitutional  change 
than  was  effected  by  the  Conqueror's  charter  concerning 
jurisdiction  in  spiritual  causes. 

The  same  general  plan  of  reorganization  which  William  Effects  of 
applied  to  the  remodeling  of  the  state,  he  gradually  applied 
to  the  remodeling  of  the  church.    With  the  councils  of  the 
year  1070  the  Conqueror's  ecclesiastical  policy  actively  begins. 
In  that  year  Pope  Alexander  II.  sent  to  England  three  legates2 
to  aid  in  the  work  of  deposing  the  native  bishops  in  order  to 
make  places  for  such  Norman  or  other  foreign  prelates  as  the 
king  could  trust.    The  natural  result  of  the  deposition  of  the  Deposition 
native  bishops,  and  the  elevation  of  their  foreign  successors,  bishops^ 
was  to  draw  the  English  church  from  its  position  of  practical 
independence  and  isolation  into  closer  communion  with  the 
rest  of  Western  Christendom,  and  into  greater  dependence  upon 
the  see  of  Rome.    William  was  careful,  however,  to  provide 
that  the  Roman  pontiff  should  not  interfere  with  the  internal 
affairs  of  the  church,  except  under  such  limitations  as  should 
be  fixed  by  him.    But  in  spite  of  such  restrictions  the  Eng- 
lish church  was  brought  into  closer  connection  with  Rome  closer 
through  the  Conquest,  and  the  result  was  the  tendency  that  ^£h  Rome. 
now  began  to  manifest  itself  to  sever  the  organization  of  the 
church  from  that  of  the  state  through  a  complete  severance 
of  ecclesiastical  from  temporal  business  by  the  creation  of 
distinct  courts  and  councils,  in  which  the  church  could  judge 
and  legislate  upon  its  own  affairs  without  secular  interference. 
By  an  express  ordinance  William  and  his  witan  decreed  the 


separation  of  the  spiritual  from  the  temporal  tribunals.8  from 

temporal 

This  ordinance,  after  declaring  the  episcopal  laws  that  had  tribunals. 

1  Bigelow,  History  of  Procedure,  p.  326. 

a  Bishop  Ermenfrid  and  the  cardinal  priests  John  and  Peter.  Ord.  Ft*. 
516  A  ;  Flor.  Wig.  1070. 

'  For  the  text  of  the  ordinance,  see  Thorpe,  Ancient  Laws,  p.  213  ;  Select  Char- 
ters, p.  85. 


256 


THE  SCIENCE  OF  JURISPRUDENCE 


Vacarius 
at  Oxford, 
1149. 


previously  been  in  force  in  England  to  be  bad  and  contrary 
to  the  sacred  canons,  forbade  the  bishops  and  archdeacons 
to  bring  any  cause  involving  questions  of  canon  law,  or  ques- 
tions concerning  the  cure  of  souls,  before  the  courts  of  the 
hundred.  Henceforth  they  are  to  hold  courts  of  their  own, 
in  which  causes  are  to  be  tried,  not  by  the  customary  but  by 
the  canon  law,1  not  yet  a  well-organized  system  of  authorita- 
tive jurisprudence.  Not  until  the  reign  of  Stephen  did  the 
systematic  study  of  the  canon  law  begin  in  England.  In 
1149  Vacarius  began  his  teaching  of  the  civil  and  canon  law 
at  Oxford.2  The  same  general  causes  that  led  to  the  organ- 
ization of  a  distinct  system  of  ecclesiastical  courts  soon  led 
to  the  organization  of  a  distinct  system  of  ecclesiastical 
councils.  During  the  primacy  of  Lanfranc  the  meetings  of 
such  councils,  which  were  held  at  the  same  time  as  the  regu- 
lar gemots,  became  frequent.3  It  was,  however,  no  part  of 
William's  policy  to  allow  to  these  ecclesiastical  assemblies 
Ecciesiasti-  the  right  to  legislate  without  limitation.  Eadmer  tells  us 
tion limited,  that  he  "did  not  suffer  the  primate  of  his  kingdom,  the  arch- 
bishop of  Canterbury,  if  he  had  called  together  under  his 
presidency  an  assembly  of  bishops,  to  enact  or  prohibit  any- 
thing but  what  was  agreeable  to  his  will  and  had  been  first 
ordained  by  him."  4  Under  these  circumstances,  and  sub- 
ject to  such  limitations,  the  national  councils  of  the  Eng- 
lish church  finally  became  distinct  bodies  from  the  national 
parliaments.  Owing  to  the  jealousy  and  strife  between  Can- 
terbury and  York  the  assembling  of  general  councils,  after 
the  independence  of  York  had  been  vindicated  by  Thurs- 

1  "Non  secundum  hundret,  sed  secundum  canones  et  episcopates  leges,  rec- 
tum Deo  et  episcopo  suo  faciat." 

*  "Tune  leges  et  causidici  in  Angliam  primo  vocati  sunt,  quorum  primus 
erat  magister  Vacarius;  hie  in  Oxenefordia  legem  docuit."  Gervace,  c.  1665. 
Cf.  R.  de  Monte,  1149  A.D. 

1  Such  councils  were  held  in  1071,  1074,  1075,  1076,  1078,  1081,  1086.  See 
Latin  Life  of  Lanfranc  attached  to  the  Canterbury  Chronicle. 

4  Eadmer,  Hist.  Nov.  i.  6. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  257 

tan,    became   practically    impossible.    The    government    of 

the  church  thus  passed  to  the  two  provincial  convocations  Convoca- 

of  York  and  Canterbury,  which,  as  constitutional  assemblies  York  and 

of  the  English  clergy,  have  suffered  no  material  change  of  Canterbui7- 

organization  from  the  reign  of  Edward  I.  down  to  the  present 

day. 

In  view  of  the  mighty  changes  wrought  by  the  coming  of  Domesday 
William,  it  is  not  strange  that  as  his  reign  drew  to  a  close 
he  should  have  desired  to  know  "  about  this  land,  how  it  was 
set,  and  by  what  men."  *  From  the  well-known  entry  in  the 
Chronicle,  under  the  year  1085,  we  further  learn  that  "  he  sent 
over  all  England  into  ilk  shire  his  men,  and  let  them  find  out 
how  many  hundred  hides  were  in  the  shire,  or  what  the  king 
himself  had  of  land  or  cattle  in  the  land,  or  whilk  rights  he 
ought  to  have  to  twelve  months  of  the  shire."  Under  this 
order  passed  in  the  mid-winter  gemot  of  1085-1086  the  Great 
Survey  was  made.  By  Lammastide  the  work  was  done,  and 
the  result  was  the  famous  record  of  Domesday.2  The  Survey 
was  taken  by  royal  commissioners,  who  went  forth  into  every  Taken  by 
shire  in  order  to  prosecute  their  inquiries  through  the  oaths  commis- 
of  those  who,  in  ordinary  times,  composed  the  county  court.  Sloners- 
Oaths  were  exacted  from  the  sheriff  and  all  the  barons  of  the 
shire  and  their  Norman  associates;  every  hundred  appeared 
also  by  sworn  representatives,  and  from  each  manor  or  town- 
ship the  priest,  the  reeve,  and  six  villeins  or  ceorls.3  The 
leading  fiction  that  pervaded  the  whole  work  was  that  King 
William  was  the  immediate  successor  of  King  Eadward ;  their 
reigns  were  established  as  the  two  great  periods  of  legal  gov- 
ernment; and  the  leading  inquiry  as  to  each  parcel  of  land 

1  Chron.  Petrib.  1085. 

3  In  order  fully  to  grasp  the  nature  and  value  of  this  great  record,  it  is  neces- 
sary to  read  Sir  Henry  Ellis 's  Introduction,  in  connection  with  Mr.  Freeman's 
brilliant  chapter  entitled  "Domesday,"  in  Norman  Conquest,  vol.  v.,  ch.  xxii. 

*  Ely  Domesday,  Dom.  iii.  497.  "  Barones  regis  inquirunt,  videlicet  per  sac- 
ramentum  vicecomis  scirae  et  omnium  baronum  et  eorum  Francigenarum,  et 
totius  centuriatus,  presbiteri,  praepositi,  vi  villanorum  uniuscujusque  villae." 

8 


258 


THE  SCIENCE  OF  JURISPRUDENCE 


Unit  of 
inquiry  is 
everywhere 
the  manor. 


Gemot  of 
Salisbury. 


William  'a 
successors. 


was,  —  who  was  its  owner  in  the  time  of  King  Eadward  ?  who 
was  its  owner  at  the  date  of  the  Survey  ?  Throughout  the 
record,  "the  unit  of  inquiry  is  everywhere  the  manor,  and 
the  manor  was  a  landlord's  estate,  with  a  township  or  village 
community  in  villenage  upon  it,  under  the  jurisdiction  of  the 
lord  of  the  manor."  1  It  is  therefore  possible  to  gather  from 
the  Survey  a  very  definite  idea  of  the  internal  organization 
of  the  manorial  system,  and  of  the  different  classes  into  which 
each  manorial  group  was  divided. 

From  the  Chronicle  we  learn  that,  immediately  after  the 
completion  of  the  Survey,  William  went  to  Salisbury,  "and 
there  came  to  him  his  witan,  and  all  the  landowning  men 
(landsittende  men)  of  substance  that  were  over  all  England, 
whose  soever  men  they  were,  and  all  bowed  down  to  him, 
and  became  his  men,  and  swore  oaths  of  fealty  to  him  that 
they  would  be  faithful  to  him  against  all  other  men."  a  In 
the  statute  which  was  passed  it  was  provided  that  every  free- 
man should  take  the  oath  of  fealty  to  King  William,  that  he 
should  be  faithful  to  him  within  and  without  England,  that 
he  would  keep  his  lands  and  honors  with  all  faithfulness, 
and  would  defend  him  before  all  men  against  all  enemies.3 
After  the  completion  of  this  great  act  of  precaution  against 
the  disruptive  tendency  of  a  principle  of  Frank  feudalism, 
to  which,  more  than  to  any  other  cause,  can  be  attrib- 
uted the  falling  to  pieces  of  France  and  the  imperial 
kingdoms,  William  passed  over  into  Normandy,  where  he 
died  in  the  following  year.  The  Norman  succession  the 
Conqueror  had  bequeathed  to  his  eldest  son  Robert,  while 
the  English  succession  was  by  the  aid  of  Lanfranc  secured 
to  his  second  son,  William  the  Red.  The  peace  of  the  new 

1  Seebohm,  English  Village  Community,  p.  82. 

a  Chron.  Petrib.  1086. 

8  "Statuimus  etiam  ut  omnis  liber  homo  foedere  et  sacramento  amrmet,  quod 
infra  et  extra  Angliam  Willelmo  regi  fideles  ease  volunt,  terras  et  honorem  illiua 
omni  fidelitate  cum  eo  servare,  et  ante  eum  contra  inimicos  defendere. "  Select 
Charters,  p.  83. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  259 

reign  thus  auspiciously  begun  was  soon  broken  by  a  revolt 

of  the  chief  men  of  Norman  blood  throughout  England,  who 

rose  under  the  leadership  of  Bishop  Odo,  upon  the  pretext  of 

supporting  the  claims  of  Robert  to  the  whole  of  his  father's 

dominions.    Thus  deserted  and  defied  by  the  bulk  of  the 

greater  nobles,  William  the  Red  at  once  fell  back  upon  the 

loyalty  of  his  English  subjects,  with  whose  aid  the  revolt  Loyalty  of 

was  crushed,  and  the  power  of  the  baronage  trampled  under  wmiam 

foot.    The  royal  authority,  thus  left  unchecked  by  the  counter-  the  Red" 

force  of  the  feudal  power,  became  in  the  hands  of  the  new 

minister,  Ranulf  Flambard,  an  irresponsible  despotism.    To 

Ranulf  is  attributed  the  organization  of  the  system  of  military  Organi- 

tenures,  together  with  all  the  oppressive  consequences  that  military 

flowed  from  them.    The  system  of  feudal  law  which  he  seems  tenures- 

to  have  worked  into  a  definite  and  formal  shape  was  applied 

with  equal  severity  to  all  feudatories,  temporal  and  spiritual. 

By  his  policy  the  local  courts  of  the  shire  and  the  hundred 

were  turned  into  engines  of  extortion;   in  the  words  of  the 

Chronicler,  "He  drove  and  commanded  all  his  gemots  over 

all  England."1    William  "was  slain  on  a  Thursday,  and 

buried  the  next  morning;  and  after  he  was  buried,  the  witan, 

who  were  then  near  at  hand,  chose  his  brother  Henry  as 

king." 2    The  promises  contained  in  Henry's  coronation  oath, 

whose  exact  words  are  still  preserved,3  were  amplified  into 

a  comprehensive  charter  of  liberties,  which  stands  not  only  charter  of 

as  the  immediate  parent  of  the  Great  Charter  of  John,  but  as 

the  first  limitation  imposed  upon  the  despotism  established 

by  the  Conqueror  and  carried  to  such  a  height  by  his  sons. 

Grave  concessions  were  therein  made  to  the  clergy  and  to 

the  baronage,  while  to  the  people  at  large  were  restored  the 

laws  of  King  Eadward,  which  symbolized  the  ancient  consti- 

1  Chron.  Petrib.  1099. 

1  Chron.  Petrib.  1100.     As  to  the  election,  see  William  of  Malmesbury,  G.  R.t 
vol.  v.,  §  393. 

1  See  Maskell,  M on.  Rit.  iii.  5,  6 ;  Select  Charters,  p.  99. 


260  THE  SCIENCE  OF  JURISPRUDENCE 

tution,  with  such  amendments  as  the  Conqueror  had  made.1 
The  hold  thus  acquired  upon  the  English  nation,  by  the  acci- 

Hismar-       dent  of  birth  and   by  the  grant  of  a  charter,  Henry  soon 

Matilda.  strengthened  by  a  marriage  with  Matilda,  the  sister  of  Eadgar 
Aetheling,  the  last  king  of  the  ancient  house  of  Cerdic  and  of 
Woden.  Thus  intrenched  in  the  affections  of  his  English 
subjects,  Henry  was  strong  enough  to  make  Normandy  an 
English  dependency,  and  to  crush  the  unfaithful  barons  who 
stood  by  the  side  of  Robert  when  upon  his  return  from  the 
Holy  Land  he  came  to  challenge  the  English  crown  as  the 
head  of  the  Norman  race.  Upon  the  ruins  of  the  greater 
feudatories  Henry  raised  up  a  set  of  lesser  nobles  from  whose 
ranks  he  selected  the  sheriffs  and  judges  who  were  to  aid 
him  in  the  work  of  administrative  reform.  Chief  among 
this  new  ministerial  nobility  dependent  upon  royal  favor  was 

Bishop  Bishop  Roger  of  Salisbury,  who  as  justiciar  became  the  or- 
of  ganizcr  of  the  new  fiscal  and  judicial  system.  From  the  reign 
^  Henry  I.  the  curia,  whose  methodical  procedure  imposed 

.system.  upon  the  despotic  powers  of  the  crown  the  restraints  at  least 
of  administrative  routine,  can  be  distinctly  traced  as  a  supreme 
court  of  justice  containing  specially  appointed  judges,  and 
presided  over  by  the  king  or  justiciar,  who  is  occasionally 
distinguished  by  the  title  of  "  summus  "  or  "  capitalist  Under 
the  guidance  of  Bishop  Roger  the  whole  judicial  and  financial 
organization  of  the  kingdom,  both  central  and  local,  was  reor- 
ganized and  remodeled.  Not  until  the  new  feudal  concep- 
tion of  kingship  arose  was  it  supposed  that  a  kingdom,  like 
any  other  estate,  might,  in  the  absence  of  a  son,  pass  to  a 
daughter.  By  the  aid  of  that  growing  feudal  theory  Henry 
hoped  to  be  able  to  settle  the  succession  to  all  his  dominions 
upon  his  widowed  daughter  Matilda.  With  that  end  in  view, 
at  the  Christmas  gemot  of  1126-1127,  Henry  required  all  the 

1  "Legam  Edwardi  regis  vobis  reddo  eum  illis  emendationibus  quibua  pater 
meua  earn  emendavit  consilio  baronum  suorum."    Art.  13. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  261 

great  men  of  the  land,  both  clergy  and  laity,  to  swear  that  The  oath  to 
they  would,  after  his  death,  receive  his  daughter  as  Lady 
over  England  and  Normandy.1    Before  the  end  of  the  year  in 
which  these  oaths  were  taken,  Matilda  was  married  to  Geof- 
frey, called  Plantagenet,  the  son  of  the  one  enemy  whom  Henry  The 
feared,  —  Count  Fulk  of  Anjou.     But,  in  spite  of  all  his  pre-  manage, 
cautions,  Henry's  experiment  only  paved  the  way  to  civil 
war.     The  death  of  the  peace-loving  king  was  followed  by  an 
outburst  of  anarchy,  during  which  Stephen,  the  nephew  of 
Henry  and  the  nearest  male  heir  of  the  Conqueror's  blood, 
hastened  over  into  England  and  was  elected  2  and  consecrated  Election  of 
king  with  but  little  opposition.     Not  until  the  landing  of  thePcivu' 
Matilda  in  1139  did  the  period  of  general  civil  war  actively  war' 
begin,  a  period  during  which  England,  for  the  first  and  last 
time  in  her  history,  sank  into  a  state  of  feudal  anarchy  which 
the  Conqueror  by  his  far-sighted  policy  had  striven  to  prevent. 
When  each  of  the  contending  parties  had  well-nigh  reached 
a  state  of  exhaustion  Henry  of  Anjou,  the  son  of  Geoffrey 
and  Matilda,  appeared  upon  the  scene  as  the  champion  of 
his  own  cause.     In  1153  Henry  came  to  England,  raised  a 
native  army,3  and  confronted  Stephen  in  the  field.     But  be- 
fore a  decisive  battle  could  be  fought,  the  barons  intervened 
as  mediators,  and  the  result  was  the  treaty  of  Wallingford,  Treaty  of 
through  which  the  evils  of  the  long  anarchy  were  brought  to  a  ford.  " 
close.     That  treaty,  in  which  Stephen  was  recognized  as  king 
and  Henry  as  his  heir,  was  attended  by  an  elaborate  project 
of  reform  which  contemplated  among  other  things  the  resump- 
tion of  all  royal  rights  that  had  been  usurped  by  the  baronage, 

1  Chron.  Petrib.  1127 ;  Flor.  Wig.  1126.  William  of  Malmesbury  (Hist.  Nov. 
1,  2,  3)  says,  "Ut  si  ipse  sine  haerede  masculo  decederet,  Matildam  filiam 
siuun,  quondam  imperative  em,  iiicunc  tauter  et  sine  ulla  retractione  dominam 
susciperent." 

•  Gesta  Stephani,  p.  3;  E.  Chron.  1135;  Gervase,  c.  1340.  The  reign  was 
ushered  in  by  the  issuance  of  a  brief  and  formal  charter.  Statutes  of  the  Realm, 
Charters  of  Liberties,  p.  4.  In  1136  a  second  was  issued  in  which  distinct 
promises  are  made  to  the  three  estates.  Select  Charters,  p.  120. 

»R.  de  Monte,  1153. 


THE  SCIENCE  OF  JURISPRUDENCE 


Death  of 
Stephen  and 
accession  of 
Henry 

of  Anjou. 


The 
period 
of  fusion. 


Super- 
structure 
Norman ; 
substruc- 
ture Old- 
English. 


the  restitution  of  estates  taken  from  their  lawful  owners, 
the  razing  of  all  unlicensed  castles,  the  banishment  of  the 
foreign  mercenaries  from  the  country,  and  the  appointment 
of  sheriffs  to  reestablish  justice  and  order.1  The  death  of 
Stephen,  within  a  short  time  after  the  pacification,  removed 
the  one  remaining  obstacle  from  the  path  of  Henry,  whose 
power  of  combining  and  adapting  all  that  was  useful  in  the 
old  system  of  government  with  all  that  was  desirable  and 
necessary  under  the  new,  gave  to  the  policy  he  initiated  in 
England  almost  the  character  of  a  new  creation. 

9.  By  the  coming  of  William  two  kindred  systems  of 
government  and  tenure,  both  tending  in  the  same  direction 
and  yet  in  different  stages  of  development,  were  brought  into 
the  closest  contact,  and  out  of  the  fusion  between  the  two 
has  grown  the  modern  constitution.2  The  period  of  growth 
and  transition  that  intervenes  between  the  ancient  constitu- 
tion and  the  constitution  in  its  modern  form  may  be  divided 
into  two  stages:  the  first  or  Norman  stage,  embracing  the 
reigns  of  the  four  Norman  kings,  is  the  stage  during  which 
the  great  mass  of  foreign  elements  and  influences  were  infused 
into  the  blood,  the  language,  the  laws,  the  political  institutions, 
of  the  English  nation ;  the  second  or  Angevin  stage,  embrac- 
ing the  reigns  of  Henry  II.  and  his  sons,  is  the  stage  during 
which  the  foreign  and  native  elements  were  worked  together 
into  a  new  combination  that  retained  the  strongest  elements 
of  both.  The  most  striking  single  fact  revealed  by  an  analysis 
of  the  result  is  that  in  the  new  combination  the  superstructure 
is  Norman,  the  substructure  Old-English.  In  reviewing  the 

1  The  treaty  itself  is  preserved  in  the  form  of  a  charter  of  Stephen,  printed  in 
Rymer,  i,  18.     But  the  entire  scheme  of  reform  which   attended  it  can  only 
be  gathered  from  the  contemporary  historians.     See  R.  de  Monte,  1153;  Hen. 
Hunt.,  fol.  228 ;  Gervase,  1375 ;  Will.  Newberg,  1.  30 ;  Roger  of  Hoveden,  i.  212. 

2  "The  Anglo-Saxon  and  the  Norman  institutions  had  been  actually  in  a 
state  of  fusion  since  the  Conquest,  and  the  reign  of  Henry  gave  to  the  united 
systems  the  character  which  has  developed  into  the  English  constitution." 
Preface  to  Benedict,  Rolls  Series,  ii.  xxxvi. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  263 

first  or  Norman  stage  of  the  transition  period,  which  ends 

with  the  death  of  Stephen,  the  effort  was  made  to  define  in  gen- 

eral terms  the  character  of  the  new  elements,  and  the  amount 

of  change  or  innovation  introduced  during  the  reigns  of  the 

Conqueror  and  his  sons.    The  fact  was  then  emphasized  that 

while  the  Norman  kings  were  ever  striving  to   consolidate 

and  strengthen  the  royal  authority,  by  building  up  around  it 

a  new  system  of  central  administration,  they  were  at  the  same 

time  careful  to  preserve  by  express  ordinance  the  ancient 

customary  law  of  the  realm  together  with  the  system  of  local 

courts  in  which  that  law  had  been  immemorially  adminis- 

tered.   The  distinctive  feature  of  the  Norman  period,  so  far  Distinctive 

as  constitutional  history  is  concerned,  is  the  development  of  the  o^ 


new  system  of  central  administration  with  the  sources  of  its  Pen.od  th.e 

*  cuna  regis. 

strength  in  the  royal  authority.  In  order  to  discharge  the 
many  vast  and  intricate  duties  the  growth  of  the  royal  power 
after  the  Conquest  concentrated  around  the  person  of  the  king, 
it  became  necessary  for  the  crown  to  organize  out  of  the  main 
body  of  the  great  council  a  smaller  body,  which  could  be 
charged  under  the  king's  direction  with  the  whole  work  of 
central  or  national  administration.1  In  the  time  of  Henry  I. 
detachments  of  justices  were  first  sent  from  the  curia  to  assess 
the  revenue  and  to  adjust  the  business  of  the  exchequer  in 
each  shire.  In  that  way  the  new  system  of  central  adminis- 
tration was  first  brought  into  direct  contact  with  the  local 
machinery  of  the  constitution.  But,  excepting  the  occasional 
contact  that  thus  arose  out  of  the  fiscal  visitations  of  the  jus- 
tices, the  central  and  local  systems  stood  apart  during  the 
reigns  of  the  Norman  kings.  Not  until  the  Angevin  period 
is  reached,  not  until  the  reigns  of  Henry  II.  and  his  sons,  is 
there  anything  like  a  growing  together  of  the  Norman  system 

1  "In  conformity  with  the  system  of  France  and  other  feudal  countries, 
there  was  one  standing  council,  which  assisted  the  kings  of  England  in  the  col- 
lection and  management  of  their  revenue,  the  administration  of  justice  to 
suitors,  and  the  dispatch  of  all  public  business.  "  Hallam,  Middle  Ages,  ii.  317. 


264 


THE  SCIENCE  OF  JURISPRUDENCE 


Union  of 
royal  and 
customary 
law. 


Origin  of 
trial  jury. 


of  central  administration  and  the  tenacious  machinery  of 
Old-English  local  freedom  embodied  in  the  organizations  of 
the  township,  the  hundred,  and  the  shire.  The  same  agencies 
which,  during  the  Angevin  reigns,  brought  about  the  amal- 
gamation of  the  new  administrative  system  and  the  ancient 
local  machinery,  also  brought  about  a  union  between  the  new 
system  of  royal  law,  radiating  from  the  curia  regis,  and  the 
ancient  system  of  customary  law  as  administered  in  the  local 
courts.1  While  keeping  that  distinction  steadily  in  view, 
Brunner  has  demonstrated  the  fact  that  out  of  the  union  of 
a  certain  branch  of  royal  law,  in  the  form  of  special  commis- 
sions or  writs  of  inquiry  issued  from  the  curia  regis  with  a 
certain  kind  of  community  witness  proof  embedded  in  the 
customary  law,  has  been  gradually  developed  the  English  jury 
of  judgment,  the  trial  jury  of  modern  times.2  The  Conquest 
had  the  effect  of  uniting  the  English  among  themselves. 
After  the  time  of  Stephen,  even  the  threefold  division  of  the 
kingdom  into  the  Dane  law,  the  West  Saxon,  and  Mercian 
law  became  obsolete  and  disappeared.3  No  dividing  lines 
survived  except  such  as  were  drawn  by  slight  differences 
in  local  custom.4  Into  the  greater  mass  of  the  united  English 
nation  the  smaller  Norman  mass  was  gradually  absorbed,  — 
the  conquerors  were  conquered,  the  Normans  became  Eng- 
lishmen. As  early  as  the  reign  of  Henry  I.  causes  began  to 
work  which,  before  a  century  had  passed  by,  had  drawn 
together  into  one  nation  all  natives  of  the  soil,  regardless  of 
older  differences  of  race  and  speech.  Under  the  pressure  of 
common  calamities,  national  enmities  were  during  Stephen's 

1  A  great  German  has  clearly  pointed  out  the  fact  that  in  the  study  of  Teu- 
tonic law  the  distinction  must  be  sharply  drawn  between  such  law  as  flows  from 
a  royal  or  official  source,  and  such  as  flows  from  a  customary  or  popular  source. 
As  to  Sohm's  views  on  that  subject,  see  North  American  Review  for  July,  1874, 
p.  222. 

*  See  Die  Entstehung  der  Schvnirgerichte,  Berlin,  1874. 
1  Cf.  Simeon  of  Durham,  ed.  Hinde,  i.  220-222. 

*  These,  Glanvill  says,  are  too  numerous  to  be  put  on  record.     De  Legibus, 
lib.  xii.,  c.  6. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  265 

reign  in  a  great  measure  forgotten.  And  through  the  agency  of 
frequent  intermarriage  the  work  of  fusion  so  rapidly  advanced 
that  a  writer  of  the  time  of  Henry  II.  is  obliged  to  confess  that, 
without  a  careful  examination  of  pedigree,  it  was  impossible 
to  ascertain  in  his  time  who  was  Norman  and  who  was  Eng-  Fusion 
lish.1  As  soon  as  that  condition  of  things  was  reached  in 
which  it  was  difficult  to  distinguish  an  Englishman  from  a 
Norman,  all  legal  distinctions  in  favor  of  one  race  against 
another  necessarily  passed  out  of  view.2  The  greatest  period 
of  trial  through  which  the  English  language  ever  passed  began 
with  the  Norman  Conquest.  For  a  long  time  after  that  event 
the  lordly  foreign  tongue  reigned  in  the  castle  and  the  hall, 
while  the  humbled  native  speech  reigned  in  the  cottage  and 
the  hamlet.  But,  in  the  end,  the  lordly  speech  passed  away, 
and  the  English  tongue  survived  with  a  deep  infusion  of  English 
Romance  words.  A  different  story  must,  however,  be  told  survived, 
when  we  look  to  the  struggle  between  Latin,  French,  and 
English  in  the  fields  in  which  laws  were  made  and  adminis- 
tered. For  a  time  after  the  Conquest,  English  seemed  to 
have  a  fair  chance  of  holding  its  own  in  legal  affairs ;  the  two 
languages  which  William  used  for  his  laws,  his  charters,  and 
his  writs  were  Latin  and  English.  While  many  foreign  words 
made  their  way  into  Domesday,  many  Old-English  words 
with  definite  legal  meanings  were  preserved.3  But  during 
the  century  that  followed  when,  under  Henry  II.  and  his 
sons,  the  time  came  for  the  regular  enrollment  of  all  the  king's 
acts  and  of  all  the  judgments  of  his  court,  Latin  became  the  Latin  i 
language  of  official  and  judicial  records,  a  position  from  which 
it  was  not  dislodged  until  the  year  1731,  when  it  gave  place  records- 

1  "Jam  cohabitantibus  Anglicis  et  Normannis,  et  alterutrum  uxores  ducen- 
tibus  vel  nubentibus,  sic  permixtae  sunt  nationes,  ut  vix  discern!  possit  hodie,  de 
liberis  loquor,  quis  Anglicus  quis  Normannus  sit  genere."  Dialogus  de  Scac- 
cario,  i.,  c.  10. 

a  As  to  the  gradual  extinction  of  Englishry,  see  Bracton,  135  b ;  Fleta,  lib. 
i.,  c.  30;  Bigelow,  Hist,  of  Procedure,  p.  81. 

1  See  Maitland,  Domesday  Book,  8. 


266 


THE  SCIENCE  OF  JURISPRUDENCE 


French 
in  law 
literature. 


Henry  II. 

and  his 
work  of 
reform. 


to  English.1  In  the  struggle  between  French  and  English 
for  the  mastery  in  the  domain  of  legal  procedure  victory  for 
the  former  was  assured  certainly  from  1166,  the  year  of  the 
assize  of  novel  disseizin,  when  it  was  settled  that  every  man 
dispossessed  of  his  freehold  must  seek  a  remedy  in  a  royal  and 
French-speaking  court.  From  that  time  the  ultimate  triumph 
of  French  law  terms  was  secure.  Legal  instruments,  in 
French,  rare  in  the  twelfth  century,  became  commoner  in 
the  thirteenth  and  yet  commoner  in  the  fourteenth.  In  the 
thirteenth  century  French  slowly  supplanted  Latin  as  the 
literary  language  of  the  law.  The  need  for  French  text- 
books was  already  felt,  and  before  the  century  closed  it  was 
being  met  by  the  book  we  call  Britton,  by  other  tracts,  and 
by  the  reports  of  decided  cases  known  as  the  Year  Books. 
Thenceforward  French  reigns  supreme  over  such  legal  litera- 
ture as  there  is.2  Thus  it  was  that  French  made  an  indelible 
impress  upon  the  entire  body  of  English  law.  It  is  hardly 
too  much  to  say  that  at  the  present  day  almost  all  English 
words  that  have  a  definite  legal  import  are  in  a  certain  sense 
French  words.3 

Upon  the  death  of  Stephen  in  1154,  Henry  of  Anjou,  then 
in  his  twenty-second  year,  came  to  the  throne  pledged  to  the 
task  of  bringing  peace  and  prosperity  out  of  anarchy  and 
exhaustion  upon  the  lines  of  that  project  of  reform  that  had 

1  Statute  4  Geo.  II.  c.  26. 

2  The  honor  of  being  the  first  books  concerning  English  law  that  were  written 
in  the  English  language  probably  belongs  to  some  of  Sir  John  Fortescue's 
treatises,  which  can  hardly  be  called  legal  text-books. 

*  Contract,  agreement,  covenant,  obligation,  debt,  condition,  bill,  note,  mas- 
ter, servant,  partner,  guarantee,  tort,  trespass,  assault,  battery,  slander,  dam- 
age, crime,  treason,  felony,  misdemeanor,  arson,  robbery,  burglary,  larceny, 
property,  possession,  pledge,  lien,  payment,  money,  grant,  purchase,  devise, 
descent,  heir,  easement,  marriage,  guardian,  infant,  ward,  all  are  French.  If 
we  enter  a  court  of  justice,  court,  justices,  judges,  jurors,  counsel,  attorneys, 
clerks,  parties,  plaintiff,  defendant,  action,  suit,  claim,  demand,  indictment, 
count,  declaration,  pleadings,  evidence,  verdict,  conviction,  judgment,  sentence, 
appeal,  reprieve,  pardon,  execution;  all  save  the  witnesses,  writs,  and  oaths, 
have  French  names.  See  Pollock  and  Maitland,  History  of  English  Law,  2d  ed., 
i.  80-87. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  267 

followed  the  treaty  of  Wallingford.1  To  the  complete  perform- 
ance of  the  work  of  restoration  the  first  ten  years  of  Henry's 
reign  (1154-1164)  were  chiefly  devoted.  During  the  first 
three,  however,  the  greater  part  of  the  work  was  actually 
accomplished.  Within  that  time  the  feudal  party  was  dis- 
armed, and  the  curia  regis  and  exchequer  reestablished,  and 
careful  provision  made  for  both  central  and  provincial  judi- 
cature. When  in  1159  he  became  involved  in  a  foreign  war 
by  attempting  to  enforce  the  claim  of  his  wife  on  the  county 
of  Toulouse,2  he  found  it  highly  inconvenient  to  carry  on  mili- 
tary operations  against  the  most  distant  province  of  France 
by  the  aid  of  feudal  levies  who  were  only  bound  to  a  limited 
service.  Then  it  was  that  Henry  hit  upon  an  expedient 
through  which  money  could  be  realized  for  the  employment 
of  mercenary  soldiers.  As  a  financial  measure  to  aid  the 
meditated  expedition  against  Toulouse,3  Henry  and  Thomas 
devised  the  institution  of  scutage  or  shield  money,  a  pecuniary  Scutage  or 
compensation  in  lieu  of  military  service.  The  hiring  of  mer-  money, 
cenaries  was  nothing  new,  but  the  device  for  raising  money 
for  their  employment  was  an  innovation  that  dates  from  this 
time.  Those  tenants  of  the  crown  who  did  not  desire  to  go 
to  the  war  were  allowed  to  pay  a  tax  of  two  marks  on  the 
knight's  fee.4  The  natural  supplement  to  this  blow  against 
feudalism  was  embodied  in  Henry's  assize  of  arms  (1181),  Aasize 
whereby  the  old  constitutional  force  was  reorganized  by  the 
duty  being  imposed  upon  every  freeman  to  provide  himself, 
for  the  defense  of  the  commonwealth,  with  arms  according  to 
his  means.5  The  full  scope  of  Henry's  policy  was  not  only 
to  establish  the  reign  of  law,  but  to  reduce  all  orders  of  men  The  reign 
to  a  state  of  equality  before  the  same  system  of  law.  The 

1  Henry  did  not  land  in  England  until  December  8,  1154. 
8  R.  de  Monte,  1158,  1159  A.D. 

*  "Tolosam  bello  aggressurus, "  etc.     John  of  Salisb.  (Ep.  145),  i.  223. 

*  See  Madox,  History  of  the  Exchequer,  ch.  16 ;  Preface  to  Benedict,  ii.  xcv. ; 
Digby,  Law  of  Real  Property,  p.  116. 

*  Benedicts,  i.  278 ;  Hoveden,  ii.  261 ;  Gervase,  c.  1459  ;  Select  Charters,  153. 


268  THE  SCIENCE   OF  JURISPRUDENCE 

most  formidable  obstacles  that  stood  in  the  way  of  the  com- 
plete execution  of  that  design  were  the  baronage  on  the  one 
hand,  with  their  private  jurisdictions,  and  the  clergy  on  the 
other,  with  their  far-reaching  claims  of  exemption  from  the 
ordinary  process  of  the  temporal  tribunals.  Not  long  after 

Conflict  Henry's  return  from  the  Continent  in  1163  the  prosecution  of 
ergy*  his  scheme  of  reform  brought  him  into  conflict  with  the  clerical 
order,  at  whose  head  stood  Thomas  Becket,  who,  a  year  before, 
had  been  elevated  to  the  see  of  Canterbury.  From  the  time  of 
the  Conqueror's  ordinance  separating  the  spiritual  and  tem- 
poral courts,  the  punishment  of  members  of  the  clerical  order 
guilty  of  criminal  offenses  had  been  attended  with  great  diffi- 
culty. In  such  cases  the  ecclesiastical  courts  would  not  allow 
the  lay  tribunals  to  take  jurisdiction,  and  the  ecclesiastical 
courts  themselves  could  only  inflict  spiritual  penalties.  That 
condition  of  things  existed  at  its  height  from  the  beginning  of 
Stephen's  reign  until  the  tenth  year  of  Henry  the  Second.  In 
the  hope  of  settling  these  and  other  conflicts  Henry  called 
together  all  the  bishops  and  barons  at  Clarendon,  in  1164,1  and 
there  renewed  his  demand  that  the  customs  regulating  the 
rights  of  the  church  in  use  in  the  time  of  his  grandfather 
should  be  accepted  as  the  law.  The  result  of  the  inquiry  was 
embodied  in  the  famous  document  known  as  the  Constitu- 

Constitu-  tions  of  Clarendon,  a  concordat  which  from  that  time  regu- 
tated  the  relations  of  the  church  with  the  state.  Its  permanent 
results  have  been  thus  summarized:  "1.  All  questions  agi- 
tated concerning  church  property  were  relegated  to  the  king's 
court,  or  other  lay  courts  in  one  form  or  another.  2.  All 
offenses  committed  by  men  in  orders  upon  laymen  were  to 
be  redressed  alone  in  lay  courts.  3.  Debts  and  demands  in 
favor  of  laymen  against  clerics  were  to  be  sued  in  the  same 
courts.  4.  Redress  by  clerics  against  laymen  when  it  was 
not  pursued  for  the  mere  punishment  of  sin  was  to  be  sought 

1  R.  Diceto,  c.  536;  Gervase,  c.  1385. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  269 

in  the  lay  courts.  On  the  other  hand,  the  Court  Christian 
still  retained  jurisdiction  in  the  following  cases:  1.  Over 
offenses  between  the  clergy  alone.  2.  Over  small  debts, 
and  perhaps  minor  property  causes  between  the  clergy. 
3.  Over  matrimonial  causes,  the  conduct  of  the  sexes,  defama- 
tion, usury,  and  wills.  4.  Over,  it  seems,  crimes  committed 
by  the  laity  when  jurisdiction  was  sought  for  the  imposing 
of  ecclesiastical  censure,  admonition,  or  penitential  punish- 
ment. The  jurisdiction  of  the  Ecclesiastical  Court  having 
thus  become  settled  before  the  close  of  the  reign  of  Henry 
the  Second,  a  way  was  found  to  keep  that  court  within 
the  limits  fixed,  to  wit,  by  means  of  a  writ  of  prohibition, 
issued  from  the  king's  court,  —  a  writ  in  use  from  the  time 
at  least  of  Glanvill,  and  probably  earlier,  until  the  present 
day."  1 

By  the  victory  won  at  Clarendon  in  favor  of  administrative  Reorgani- 
order,  the  first  period  of  Henry's  reign  was  brought  to  a  close.  centrai°and 
The  remainder  of  the  reign  (1164-1189),  so  far  as  constitutional 
history  is  concerned,  was  devoted  to  the  reorganization  of  the 
central  and  provincial  systems,  and  to  the  task  of  drawing 
them  into  closer  relations  with  each  other.  The  composition 
of  the  national  council,  which  was  now  summoned  at  regular 
intervals,  was  that  of  a  perfect  feudal  court,  —  an  assembly 
of  archbishops,  bishops,  abbots,  priors,  earls,  barons,  knights, 
and  freeholders.2  The  constituent  members  of  the  assembly 
are  the  same  as  under  the  Norman  kings,  but  greater  promi- 
nence and  a  more  definite  position  are  now  assigned  to  the 
minor  tenants-in-chief.  But  under  the  changes  of  form  and 
of  name  the  continuity  of  the  Old-English  national  assembly 
went  on  unbroken.  In  the  days  of  Henry  II.,  as  in  the  days  of 
Edward  and  of  William,  an  ordinary  meeting  of  the  national 
assembly  embraced  only  the  witan,  the  magnates  of  the  realm; 

1  Bigelow,  History  of  Procedure,  pp.  52,  53. 
3  Select  Charters,  pp.  22,  23. 


270 


THE  SCIENCE  OF  JURISPRUDENCE 


Influence 
of  the 
practice  of 

summons. 


Fourteenth 
article  of 
Great 
Charter. 


while  on  an  extraordinary  occasion  it  might  embrace,  besides 
these,  not  only  the  tenants-in-chief,  but  the  whole  body  of 
freeholders.  Through  the  influence  of  the  practice  of  sum- 
mons, to  whose  origin  an  exact  date  cannot  be  assigned, 
the  tendency  was  fast  gaining  ground  to  limit  the  national 
assembly  to  those  only  who  were  summoned  by  the  king's  writ, 
either  personally  or  in  a  body.  The  writs  of  summons  were 
of  two  kinds;  first,  such  as  were  specially  addressed  to  those 
great  personages  whose  presence  was  necessary,  and  who  were 
summoned  as  a  matter  of  course;  second,  such  as  were  ad- 
dressed generally  to  the  sheriff  of  each  shire,  requiring  him 
to  summon  in  a  body  the  lesser  landowners.  How  far  this 
practice  of  summons,  which  was  in  active  operation  in  the 
time  of  Henry  II.,  had  developed  up  to  the  sixteenth  year  of 
the  reign  of  John,  can  be  definitely  ascertained  from  the  four- 
teenth article  of  the  Great  Charter,  which  provides  that, 
"to  have  the  common  counsel  of  the  kingdom,  we  will  cause 
to  be  summoned  the  archbishops,  bishops,  abbots,  earls,  and 
greater  barons  singly  by  our  letters;  and  besides  we  will 
cause  to  be  summoned  in  general  by  our  sheriffs  and  bailiffs 
all  those  who  hold  of  us  in  chief."  l  By  that  clause,  which  no 
doubt  expressed  the  then  existing  practice,  the  qualification 
for  membership  in  the  national  assembly  was  at  last  distinctly 
defined,  and  that  qualification  naturally  assumed  a  feudal 
shape.  No  one  was  expected  to  attend  unless  he  was  sum- 
moned; and  no  one  was  summoned  unless  he  was  a  tenant- 
in-chief.  By  the  form  of  the  summons  a  line  was  also  dis- 
tinctly drawn  between  two  definite  classes  of  men,  —  between 
the  magnates,  who  were  entitled  to  a  personal  summons,  and 
the  main  body  of  tenants-in-chief,  who  were  summoned 
generally  in  the  shires:  in  that  way  the  distinction  between 

1  Cap.  14.  "Summoneri  faciemus  archiepiscopes,  episcopos,  abbates,  comites, 
et  ma.jorfs  barones,  sigillatim  per  litteras  nostras ;  et  praeterea  faciemus  sum- 
moneri  in  generali,  per  vici  comites  et  ballivos  nostros,  omnes  illos  qui  de  nobia 
tenent  in  capite. " 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  271 

lords  and  commons  begins.     Henry  II.  legislated  in  the  old  Distinction 
Teutonic  form  which  had  been  immemorially  employed  by  lordTand 
his  Old-English  and  Norman  predecessors.    As  Alfred  pro-  commons- 
mulgated  his  code  with  the  counsel  and  consent  of  his  witan, 
so  Henry  legislated  with  the  advice  and  consent  of  his  national 
council.     The  legislative  enactments,  thus  promulgated  by 
the  Norman  and  by  some  of  the  Plantagenet  kings,  assumed 
many  forms  before  they  appeared  in  the  final  form  of  statutes. 
During  the  Norman  reigns  such  enactments  were  usually 
cast  in  the  form  of  charters;1  in  the  reign  of  Henry  II.  they 
were  generally  known  by  the  name  of  assizes,2  a  word  of 
various  application.     In  the  reign  of  Henry  III.  legislative 
enactments  appear  in  the  form  of  provisions ; 3  in  the  reigns 
of  Edward  I.  and  his  successors  they  assume  the  form  of 
statutes.4    The  ancient  form  of  royal  legislation  was  not, 
however,  superseded  by  the  modern  form  of  national  legis-  Royal 
lation  until  the  ancient  council  of  the  king  was  transformed  into  byPnationai 
a  national  Parliament.5    The  statement  has  been  made  here-  leglslatlon- 
tofore  that  with  the  imposition  of  the  Danegeld,  necessarily 
a  land  tax,  the  history  of  English  taxation  really  begins. 
Under  the  famous  rating  of   1008,  to  which  can  be  traced 
the  origin  of  ship  money,  the  burden  of  raising  a  fleet  was 
imposed  upon  the  whole  nation,  but  the  proportion  to  be 
contributed  by  each  district  was  fixed  by  reference  to  the 
number  of  hides  contained  in  each.     In  the  case  of  the  towns, 
to  which  the  reckoning  by  hides  could  not  apply,  the  Danegeld 
seems  to  have  been  compounded  for,  and  the  composition  or 
aid  thus  derived  represents  no  doubt  the  later  talliage.     No 

1  Reeves,  History  of  England,  i.  478. 

a  As  temporary  or  tentative  enactments  they  strongly  resembled  the  Frank 
Capitularies,  or,  to  go  farther  back,  the  edicts  of  the  Roman  praetors. 

*  At  that  time  "Our  English  lawyers  have  no  philosophy  of  law,  nor  have  they 
pursued  very  far  the  question,  How  does  law,  or  a  law,  come  into  being?" 
Pollock  and  Maitland,  i.  174. 

4  Hal  lain,  Middle  Ages,  iii.  50. 

*  The  legislation  of  the  Great  Charter  may  be  considered,  to  a  certain  extent, 
as  an  attempt,  a  type,  a  step  in  advance  towards  that  consummation. 


272 


THE  SCIENCE  OF  JURISPRUDENCE 


Ancient 
land  tax. 


Origin  of 

knight's 

fees. 


Taxation 
personal 
property. 


matter  whether  it  is  called  Danegeld,  aid  or  hidage,  carucage,1 
or,  in  the  case  of  the  towns,  talliage,2  the  ancient  land  tax, 
originally  imposed  by  Aethelred  on  the  hide,  can  be  surely 
distinguished.  The  income  from  feudal  tenures,  which  ac- 
crued to  the  Norman  kings  as  feudal  lords,  may  be  regarded 
as  an  addition  or  supplement  to  the  taxes  and  dues  which 
grew  out  of  the  ancient  constitution.  The  new  military  serv- 
ice that  arose  out  of  the  development  of  tenures  was  probably 
measured  at  first  by  the  existing  custom  which  imposed  the 
equipment  of  one  fully  armed  man  upon  every  five  hides  of 
land.3  By  degrees  the  older  system  based  upon  the  hide 
was  gradually  superseded  by  a  new  division  of  the  land  into 
knight's  fees,  and  by  the  fixing  of  the  knight's  fee  to  a  par- 
ticular amount  of  land.  Up  to  that  point  in  Henry's  reign  — 
leaving  out  of  view  the  receipts  from  the  customs  —  all 
taxation  fell  upon  the  land,  and  consisted  (1)  of  the  ancient 
customary  dues,  and  the  tax  on  the  hide, —  survivals  of  the 
Old-English  system;  and  (2)  of  the  feudal  incidents,  and 
the  scutage,  or  tax  on  the  knight's  fee,  —  products  of  the 
new  system  of  military  tenures.  The  growth  of  national 
prosperity,  and  the  consequent  development  of  material 
wealth,  consequent  upon  Henry's  policy  of  order  and  reform, 
Of  rapidly  brought  into  existence  a  mass  of  personal  property 
which  presented  to  the  Angevin  financiers  a  new  and  tempting 
basis  of  taxation  capable  of  unlimited  expansion.  By  the 
Assize  of  1181,  in  which  each  freeman  was  required  to  equip 
himself  with  arms  according  to  his  means,  and  in  which  local 
jurors  were  required  to  determine  on  oath  the  liability  of  each, 

1  For  a  definition  of  the  "carucate,  or  land  of  a  plow-team,  used  instead  of 
the  hide  for  later  taxation,"  see  Seebohm,  English  Village  Community,  p.  40. 

3  Cf.  Madox,  History  of  the  Exchequer,  p.  480 ;  Blackstone's  Commentary,  i. 
310  (Sharswood  ed.). 

»  "Si  rex  mittebat  alicubi  exercitum,  de  quinque  hidis  tantum  unus  miles 
ibat,  et  ad  ejus  victum  vel  stipendium  de  unaquaque  hida  dabantur  ei  iiii.  solid! 
ad  duos  menses."  Domesday  (Customs  of  Berkshire),  i.  56.  See  also  Digby, 
Law  of  Real  Property,  p.  35. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  273 

a  move  was  made  towards  the  taxation  of  rent  and  chattels.1 
Seven  years  later  Henry  took  the  final   step  and   brought 
taxation  directly  to  bear  upon  personal  property  by  decreeing 
with  the  authority  of  a  great  council  at  Geddington  a  tithe 
of  a  tenth  of  movables  to  aid  the  common  host  of  Christendom 
in  the  retaking  of  the  Holy  City  from  Saladin.     In  order  fairly 
to  assess  each  man's  liability  to  the  tithe,  Henry  resorted 
to  his  favorite  institution  of  inquest  by  the  oaths  of  local 
jurors.2    In  the  reign  of  Richard  I.,  when  the  Danegeld  was 
revived  under  the  name  of  carucage,  the  new  principle  of  jury 
assessment  was  applied  in  a  general  way  to  the  assessment  of 
all  lands  subject  to  the  tax.3    In  that  way  the  representative 
principle  —  which  first  appears  in  the  form  of  the  reeve  and  Taxation 
four  selectmen  who  represent  the  township  in  the  courts  of  sentation. 
the  shire  and  hundred  —  is  brought  into  close  contact  with 
the  system  of  taxation.     It  is  first  applied  in  an  humble  way 
through  the  chosen  jurors  to  the  assessment  of  the  tax;    it 
next  becomes  involved  with  the  granting  of  the  tax;    and, 
finally,  it  determines  the  method  of  its  expenditure.     As  suc- 
cessors of  the  Old-English  kings,  the  Norman  and  Angevin 
rulers  retained  the  right  to  summon,  under  the  lead  of  the 
sheriffs,  the  ancient  forces  of  the  shires;  as  feudal  lords,  they 
gained  the  right  through  the  growth  of  tenures  to  call  upon  the 
feudal  array  to  perform  military  service  due  from  their  lands.. 
As  the  fruits  of  feudal  tenures  were  an  addition  or  supplement  Relation 
to  the  older  revenues  derived  from  the  ancient  system,  so  the  feudal 
feudal  army  was  an  addition  or  supplement  to  the  older  con-  **"?  *? the 

ancient 

stitutional  force  of  the  land.  Through  the  results  of  Henry's 
legal  reforms,  which  tended  to  centralize  to  the  utmost  the 
administration  of  justice,  the  financial  aspect  of  the  curia 

1  See  article  9  of  the  Assize,  Select  Charters,  p.  154. 

2"Et  si  aliquis  juxta  conscientiam  illorum  minus  dederit  quam  debuerit, 
eligentur  de  parochia  quatuor  vel  sex  viri  legit  imi,  qui  jurati  dicant  quant  it  at  em 
illam  quam  ille  debuisset  dixisse ;  et  tune  oportebit  ilium  superaddere  quod 
minus  dedit."  Benedictus,  ii.  31. 

1  Hoveden,  iv.  46  sq. 


274 


THE  SCIENCE  OF  JURISPRUDENCE 


Growth  of 

judicial 

business. 


Beginning 
of  the 

king's  bench 
as  a  distinct 
tribunal. 


The 
exchequer. 


regis  was  overshadowed  by  its  development  as  a  judicial 
tribunal.  During  the  twelve  years  (1164-1176)  of  legislative 
reform  that  followed  the  adoption  of  the  Constitutions  of 
Clarendon,  the  growth  of  the  judicial  business  of  the  curia 
seems  to  have  been  so  great  that  in  1176  its  staff  had  increased 
to  eighteen  justices,  who  were  apportioned  to  the  six  circuits 
into  which  the  kingdom  was  then  divided.  In  1178  this 
staff,  which  was  found  to  be  too  large,  was  reduced  to  five 
judges,  who  "are  to  hear  all  the  complaints  of  the  kingdom 
and  to  do  right,  and  not  to  depart  from  the  curia  regis."  In 
the  following  year  a  new  arrangement  was  made,  and  out  of 
a  larger  staff,  charged  with  exchequer  business  and  the  work 
of  the  circuits,  six  justices  instead  of  five  were  selected,  and 
"these  six  are  the  justices  constituted  in  the  curia  regis  to 
hear  the  complaints  of  the  people."  *  This  limited  tribunal, 
which  from  the  year  1179  held  regular  sessions  "in  banco,"  2 
probably  represents  the  beginning  of  the  king's  bench  as  a 
distinct  tribunal.  Its  sessions  are  still  held  nominally  but 
not  actually  "  coram  rege,"  and  before  it  is  brought  all  of  the 
business  which  came  at  a  later  period  before  the  courts  of 
king's  bench,  exchequer,  and  common  pleas.  But  neither 
the  special  tribunal  nor  the  courts  to  which  it  gave  birth 
were  courts  of  the  last  resort:  all  causes  too  difficult  for 
the  justices  were  reserved  for  the  decision  of  the  king  in  his 
ordinary  council,  a  body  from  which  at  a  later  date  the  juris- 
diction of  the  chancellor  and  the  judicial  functions  of  the 
privy  council  emerge.  As  to  the  history  of  the  exchequer  in 
the  time  of  Henry  II.  we  have,  in  addition  to  the  Pipe  Rolls, 
the  Dialogus  de  Scaccario,3  written  no  doubt  by  Richard 
Fitz  Neal,  while,  as  to  the  procedure  of  the  curia  regis,  we 

1  "Isti  sex  sunt  justitiae  in  curia  regis  constituti  ad  audiendum  clamores 
populi."  Benedictus,  i.  239. 

3  As  to  the  "Justiciarii  sedentes  in  banco, "sec  Granvill,  lib.  2,  c.  6,  lib.  8, 
c.  1,  and  lib.  11,  c.  1 ;  Benedictus,  vol.  ii.,  preface,  75,  Rolls  Series. 

3  It  is  printed  by  Madox  in  his  History  of  the  Exchequer,  and  has  been  fully 
discussed  by  Liebermann,  Einleitung  in  den  Dialogus  de  Scaccario. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  275 

have  the  famous  treatise,  attributed  to  the  chief  justiciar, 
Ranulf  Glanvill,  Tractatus  de  Legibus  et  Consuetudinibus 
Regni  Angliae.1 

In  1166  Henry,  with  the  traditional  counsel  and  consent,  Assize  of 
issued  the  Assize  of  Clarendon,2  said  to  be  the  most  important 
document,  of  the  nature  of  law  or  edict,  that  had  appeared 
since  the  Conquest.    The  two  leading  objects  of  this  Assize, 
whose  enforcement  was  committed  to  the  justices  itinerant, 
were  to  remodel  the  system  for  the  presentment  of  criminals, 
and  to  advance  the  king's  anti-feudal  policy  by  opening  every 
franchise  to  the  visits  of  the  sheriffs  and  justices.    The  manner 
in  which  criminal  accusations  were  made  in  the  popular  courts, 
prior  to  the  Assize  of  Clarendon,  is  a  subject  wrapped  in 
much  obscurity  and  confusion.     It  may,  however,  be  reason- 
ably inferred  from  the  ancient  laws  that,  in  the  pre-Norman  Accusations 
period,  such  accusations  were  made  either  by  a  private  accuser,  N0rman 
by  the  reeve  and  four  men  of  the  township,  or  more  often  Penod- 
perhaps  by  the  twelve  senior  thegns  in  each  hundred  or 
wapentake,3  who  went  out,  and  the  reeve  with  them,  to  "  swear 
on  the  relic  that  is  given  them  in  hand,  that  they  will  accuse 
no  innocent  man,  nor  conceal  any  guilty  one."  4    There  is 
reason  to  believe  that  after  the  Conquest,  in  the  absence  of  After  the 
a  private  accuser,  it  was  generally  left  to  the  common  voice 
of  the  neighborhood  to  make  the  accusation  and  denounce 
the  suspected  person.5    A  leading  object  of  the  Assize  of 

1  In  the  thirteenth  century  the  book  was  already  known  as  "Summa  quae 
vocatur  Glaunvile."     Maitland,  Glanvill  Revised,  Harvard  Law  Review,  vi.  1. 
As  to  the  author's  knowledge  of  Roman  and  canon  law,  see  Pollock  and  Mait- 
land's  History  of  English  Law,  i.  165  sq. 

2  For   the   text  of  the  Assize,   see  MS.   Bodl.       Rawlinson,  c.  641 ;   Select 
Charters,  p.  143. 

8  Sir  J.  F.  Stephen,  History  of  Criminal  Law  of  England,  i.  68;  Palgrave,  Com- 
monwealth, i.  213.  Palgrave  infers  that  the  reeve  and  four  men  had  the  power 
of  accusation  from  a  passage  in  a  law  of  Cnut.  See  Thorpe,  Ancient  Laws, 
i.  393. 

*  Laws  of  Aethdred,  iii.  3,  in  Thorpe,  vol.  i.,  pp.  294,  295.     See  Brunner,  Die 
Entstehung  der  Schwurgerichte,  pp.  402,  404. 

*  Forsyth,  Trial  by  Jury,  p.  160. 


276 


THE  SCIENCE  OF  JURISPRUDENCE 


The 
ordeal. 


Assize  of 
Northamp- 
ton. 


Grand 
juries  of 
Richard  I. 


Clarendon  was  to  provide  a  definite  system  for  the  present- 
ment of  all  persons  accused  of  felony  by  public  report  to  the 
courts  of  the  sheriffs  or  justices.  All  who  were  presented 
by  the  inquest  were  required  to  go  to  the  ordeal,  which  seems 
to  have  been  substituted  for  the  usual  method  of  trial  by 
compurgation.1  If  they  failed  to  stand  the  test  of  the  ordeal, 
they  were  required  to  accept  the  legal  punishment;  if  they 
were  successful,  they  were  even  then  required  to  abjure  the 
realm,  provided  they  had  been  accused  of  any  grievous  felony 
by  the  public  voice  of  the  neighborhood.2  In  1176  the  Clar- 
endon Assize  was  reissued  as  the  Assize  of  Northampton,  "  in 
the  form  of  instructions  to  the  six  committees  of  the  judges 
who  were  to  visit  the  circuits"  then  marked  out  for  them.3 
In  the  reign  of  Richard  I.,  Henry's  scheme  of  presentment  was 
reorganized  and  reestablished  upon  a  basis  more  distinctly 
representative.  Under  the  new  arrangement  "four  knights 
are  to  be  chosen  from  the  whole  county,  who,  by  their  oaths, 
shall  choose  two  lawful  knights  of  each  hundred  or  wapentake 
and  those  two  shall  choose  upon  oath  ten  knights  of  each 
hundred  or  wapentake,  or  if  knights  be  wanting,  legal 
and  free  men,  so  that  these  twelve  may  answer  under  all 
heads  concerning  their  whole  hundred  or  wapentake."  The 
presentment  juries  thus  chosen  were  limited  to  the  cognizance 
of  offenses  committed  within  their  own  hundreds.  In  what 
is  said  to  be  the  oldest  judicial  record  in  existence  are  contained 
several  illustrations  of  the  manner  in  which  such  prosecutions 
were  conducted.  From  the  "Roll  of  the  Iter  of  Stafford  in 
5  John,"  we  learn  that  "Andrew  of  Bureweston  is  suspected 
by  the  jurors  of  the  death  of  one  Hervicus  because  he  fled 
from  his  death;  therefore,  let  him  purge  himself  by  the  judg- 

1  Art.  4.    "Ibi  ante  Justiciam  facient  legem  suam."    Cf .  Bigelow,  History  of 
Procedure,  pp.  297,  323. 

2  Art.  14.     Cf.  Stephen,  History  of  the  Criminal  Law,  i.  251. 

*  Benedictus,  i.  108;  Hoveden,  ii.  89  sq.  "The  two  assizes  regulate  the  in- 
quisitions to  be  held  by  the  king's  judges  in  every  shire  and  in  every  hundred, 
without  regard  to  local  privileges. "  Freeman,  Norman  Conquest,  v.  454. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  277 

ment  of  water."  1     After  the  decree  of  the  Lateran  Council 

(1215)  forbidding  it,  trial  by  ordeal  became  obsolete,  and  the  Ordeal 

petty  jury  gradually  took  its  place  as  a  body  before  whom  by'petty 

the  truth  of  the  presentment  of  the  grand  jury  could  be  finally  Incases"11 

determined.     Thus  it  was  that  a  form  of  trial,  first  introduced 

in  civil  suits  involving  the  right  to  land,  was  introduced  into 

criminal  proceedings.2     It  is  difficult  to  determine  the  exact 

point  of  time  when  a  second  and  different  jury  came  into 

general  use  as  a  tribunal  before  which  could  be  tried  the  truth 

of  the  presentment  made  by  the  first.    That  result  seems 

certainly  to  have  been  reached  by  the  end  of  the  thirteenth 

century.3    And  here  the  fact  must  be  borne  in  mind  that  at 

the  time  of  their  introduction,  and  for  a  long  time  thereafter, 

the  jurors  who  were  allowed  to  disprove  or  sustain  the  accusa- 

tion made  by  the  jury  of  presentment  were  nothing  but  wit-  Jurors  at 

nesses.     They  were  therefore  summoned  from  the  hundred  witnesses. 

in  which  the  crime  was  supposed  to  have  been  committed,  for 

the  reason  that  personal  knowledge  of  the  facts  was  an  indis- 

pensable qualification.     If  any  of  the  jurors  chosen  were  un- 

informed of  the  matters  as  to  which  they  were  to  swear,  those 

who  were  informed  were  added  to  or  afforced  until  at  least 

twelve  were  found  who  could  agree  in  a  definite  conclusion  in 

favor  of  guilt  or  innocence.    By  degrees  this  clumsy  system  was 

improved  by  separating  the  informed  or  afforcing  jurors  from 

the  uninformed  jurors,  who,  after  being  relieved  of   their  Finally 


character  as  witnesses,  became  judges  of  evidence  detailed         68 
by  other  persons.4    By  the  end  of  the  fifteenth  century  the 

1  This  entry  is  from  the  Rotuli  Curiae  Regis  for  the  reigns  of  Richard  and  John, 
and  is  published  in  his  Proofs  and  Illustrations,  by  Sir  Francis  Palgrave,  clxxxv— 
clxxxviii. 

2  As  to  the  right  of  the  court  to  force  the  new  method  of  trial  upon  a  prisoner 
who  did  not  request  it,  by  the  proceeding  known  as  peine  forte  et  dure,  see  Pal- 
grave,  English  Commonwealth,  i.  268-270;  ii.  189-191. 

3  Britton  wrote,  it  is  supposed,  about  1291-1292.     "In  his  time  there  cer- 
tainly were  two  juries,  and  each  was  composed  of  witnesses."     Stephen,  History 
of  the  Criminal  Law,  i.  258. 

4  As  to  the  history  of  that  process,  see  Forsy  th,   Trial  by  Jury,  pp.  199  sq. 


278 


THE  SCIENCE  OF  JURISPRUDENCE 


Trial  by 
battle. 


Origin  of 
jury  trials 
in  civil 
cases. 


evolution  is  complete,1  and  the  result  is  the  criminal  jury  of 
judgment,  the  trial  jury  of  modern  times.  To  the  jury  of 
presentment  trial  by  battle  stood  in  a  perfectly  independent 
relation,  for  the  reason  that  it  could  only  be  invoked  upon  the 
accusation  of  an  individual  accuser,  and  such  an  accuser  could 
make  his  "  appeal"  not  only  after  indictment  for  the  offense, 
but  after  trial  and  acquittal  had  been  made  upon  it.  Not  until 
the  thirteenth  century  do  we  find  a  complete  history  of  the  pro- 
cedure in  Bracton,  who  is  the  great  authority  on  the  subject.2 
This  method  of  trial  seems  to  have  been  the  usual  and  estab- 
lished way  of  prosecuting  murder  down  to  the  close  of  the 
fifteenth  century.  As  late  as  the  years  1768  and  1774  attempts 
to  abolish  appeals  for  murder  by  statute  were  unsuccessful. 
The  last  appeal  of  murder  brought  in  England  was  the  case 
of  Ashford  v.  Thornton  in  1818,3  a  proceeding  that  led  to 
the  statute  of  59  Geo.  III.,  c.  46,  by  which  all  appeals  in  crim- 
inal cases  were  finally  abolished. 

The  circumstances  having  now  been  stated  under  which 
the  petty  jury  —  a  form  of  trial  first  introduced  in  civil  cases 
in  suits  involving  the  right  to  land  —  was  gradually  employed 
in  criminal  proceedings  as  a  method  of  trying  accusations 
presented  by  grand  juries,  an  account  must  be  given  of  its 
origin  as  a  method  of  trial  in  civil  suits.  The  primitive 
Teutonic  suit  was  a  simple  demand  made  by  the  actor  on  the 
defendant  for  compensation.4  The  vitally  important  part  of 

1  That  is  a  reasonable  inference  from  the  account  given  by  Sir  John  Fortes- 
cue,  in  his  De  Laudibus  Legum  Angliae,  which  must  have  been  written  between 
1460  and  1470.  How  jurors  are  informed  by  evidence  is  made  plain,  so  far  as 
civil  cases  are  concerned,  in  ch.  xxvi.,  p.  89  (Clermont  ed.). 

8  Bracton,  ii.  425  sq.  See  Guterbock,  Henricus  de  Bracton;  Scrutton,  Roman 
Law  in  England;  Bracton  and  Azo  (Selden  Soc.)-  "  Bracton 's  book  is  the  crown 
and  flower  of  English  medieval  jurisprudence."  Pollock  and  Maitland,  History 
of  English  Law,  i.  206. 

*  1  Bar.  and  Aid.  405,  a  case  argued  by  Mr.  Chitty  and  Sir  N.  Tindal.  The 
great  authority  relied  on  was  Bracton.  The  court  recognized  the  legality  of 
the  proceedings  and  admitted  the  appellee's  right  to  wage  his  body;  but  as  the 
appellant  was  not  prepared  to  fight,  the  case  ended  upon  a  plea  of  autrefois  acquit 
interposed  by  Thornton. 

4  See  Essays  in  Anglo-Saxon  Law,  p.  183. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  279 

the  procedure,  conducted  throughout  with  an  iron  rigorism 
of  form,  was  the  question  of  proof.    After  the  issue  was  made 
up  the  proof- judgment  determined  what  kind  of  proof  should 
be  given,  and  at  what  time  it  should  be  given.1    Four  distinct  Four  means 
means  of  proof  were  known  to  the  customary  law,  —  com-  known'to 
purgation,  witnesses,  documents,  and  ordeal,  to  which,  after  j£wtomary 
the  Conquest,  was  added  trial  by  battle.    After  that  innova- 
tion the  issue  was  made  up  and  the  proof- judgment  rendered 
as  before,  and  in  such  judgment  the  court  determined  as  of 
old,  according  to  the  circumstances  of  each  case,  whether 
the  trial  should  be  by  compurgation,  by  witnesses,  by  docu- 
ments, by  ordeal,  or  by  battle.    The  witnesses  of  the  custom- 
ary law  were  either  transaction  witnesses,  in  the  nature  of 
official  persons,2  and  community  witnesses,  who,  by  their 
long  acquaintance  with  the  locality,  could  testify  as  to  long 
continued  relations,  and  circumstances  known  to  them  as 
neighbors  or  members  of  the  community.     Such  witnesses 
could  only  appear  before  the  court  when  produced  by  the 
party  required  to  make  proof,  and  they  swore  only  to  the 
truth  of  the  assertion  made  by  their  chief; 3  they  were  neither 
required  nor  allowed  to  respond  to  interrogatories  propounded 
either  by  the  parties  or  by  the  court   itself.4    The  inquest  inquest 
of  proof  (inquisitio  per  testes)  was  introduced  into  England  by  °  prc 
the  Normans,  who  derived  it  directly  from  the  Frank  capitu- 
laries, into  which  it  was  probably  adopted  from  the  fiscal 

1  Brunner,  Entstehung  der  Schwurgerichte,  p.  44 ;   Siegel,  Gerichtsverfahren, 
p.  148. 

3  Aethelstan,  v.  1,  §  5.     "And  let  there  be  named  in  every  reeve's  'manung' 
as  many  men  as  are  known  to  be  unlying,  that  they  may  be  for  witness  in  every 
suit.     And  be  the  oaths  of  these  unlying  men  according  to  the  worth  of  the 
property,  without  election."     Select  Charters,  p.  66.     It  was  their  business  to 
witness  sales,  gifts,  exchanges,  and  the  like.     By  Eadgar's  law,  a  given  number 
of  such  witnesses  were  appointed  in  each  burg  and  hundred.     Eadgar,  iv.,  §§4, 
5,6. 

*  Brunner,  Schwurgerichte,  pp.  50-53. 

4  "The  proof  was  regarded  as  a  satisfaction  to  the  claimant,  and  therefore 
was  not  directed  to  the  court,  but  to  the  opponent."     Essays  in  Anglo-Saxon 
Law,  p.  188. 


280 


THE  SCIENCE  OF  JURISPRUDENCE 


An  instru- 
ment of 
royal  law. 


The 

community 

jurata. 


regulations  of  the  Code  of  Theodosius.1  The  inquest,  in  its 
Frankish  form,  consisted  of  special  commissions  issued  by  the 
kings  to  their  missi,  commanding  them  to  make  inquiry  into 
fiscal  and  judicial  matters  in  the  local  courts  by  the  oaths 
of  sworn  witnesses  who  were  required  to  respond  to  inter- 
rogatories propounded  by  the  judge  himself.2  Throughout 
the  Norman  period  it  seems  to  have  been  the  constant  prac- 
tice to  apply  this  system  of  inquest,  in  suits  involving  the  right 
to  land,  by  appealing  to  the  knowledge  of  the  community 
in  which  the  parties  resided  and  the  land  lay.3  The  writ 
which  authorized  the  holding  of  such  an  inquest  was  an  in- 
strument of  royal  law,  while  the  community  witnesses  who 
responded  to  the  inquiry  represented  a  form  of  witness  proof 
which  finds  its  origin  in  the  customary  law.  But  the  old  cus- 
tomary witnesses  now  appear  in  a  new  relation:  they  are  no 
longer  jurors  who  swear  only  to  the  assertion  of  their  chief; 
they  are  sworn  men  (jurati),  who,  being  emancipated  from 
the  ancient  rigorism  of  form,  answer  upon  their  oath  such 
questions  as  are  propounded  to  them  by  the  officer  charged 
with  the  execution  of  the  inquiry.  Thus  under  the  influence 
of  the  writ  process  the  community  witnesses  of  the  customary 
law  were  developed  into  the  community  jurata,  whose  existence 
in  England  is  clear  from  the  time  of  the  Conquest.4  Beyond 
that  stage,  in  which  the  recognitors  or  jurors  were  mere  wit- 
nesses, the  Norman  jury  did  not  advance.5  During  the  reign 
of  Henry  II.  there  was  introduced  into  England  a  new  species 
of  inquest  of  proof  known  as  the  recognition.6  The  distinc- 

1  Brunner,  Schwurgerichte,  p.  87,  citing  Cod.  Theod.,  x.  10. 1.  11 ;  Ibid.,  I.  29. 

2  The  roots  of  the  Frankish  inquest  of  proof  "are  not  to  be  found  in  the  cus- 
tomary or  folk  law  ;  it  is  a  creation  of  new  or  royal  law."    North  American  Re- 
view, July,  1884,  p.  220. 

3  Forsyth,  Trial  by  Jury,  p.  108. 

4  Bigelow,  History  of  Procedure,  p.  337. 

•  In  Normandy,  as  well  as  in  the  rest  of  France,  the  whole  system  of  inquest 
by  proof  was  gradually  superseded  by  the  French  enquete,  a  procedure  partly 
Roman,  partly  canonical.  North  American  Review,  July,  1874,  p.  221. 

8  Brunner,  Schwurgerichte,  pp.  303,  304. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  281 

tion  between  a  simple  inquisition  and  a  recognition  was  that 

the  former  consisted  of  an  inquiry  into  a  disputed  allegation  defined. 

conducted  by  a  judge  or  other  royal  officer,  who  propounded 

interrogations  to  an  indefinite  number  of  witnesses  taken 

from  the  body  of  the  local  court,  while  the  latter  consisted  of 

an  inquiry  made  by  a  definite  body  of  chosen  witnesses,  who, 

after  being  duly  chosen,  were  summoned  by  an  officer  of  the 

law  to  make  inquiry  into  the  matter  in  dispute,  and  then  to 

report  (recognoscere)  the  truth   to   the   court  itself.1    Their 

duty  was  not  judicia  facere,  but  recognoscere  veritatem.    In  a 

simple  inquisition  the  witnesses  were  a  part  of  the  court  and 

as  such  were  interrogated  by  the  judge,  while  the  recognitors 

sat  apart  from  the  court  and  conducted  their  own  inquiry 

as  a  distinct  body,  that  stood  between  the  parties  and  the 

judge.2    The  report  of  the  recognitors  was  based  on  their 

own  knowledge,  and  by  knowledge,  says  Glanvill,  was  meant 

what  they  had  seen  or  heard  from  reliable  sources.3    The  most 

authoritative  view  is  that  Henry  II.,  who  is  supposed  to  have  introduced 

introduced  the  recognitiones  into  Normandy  between  1150  11  J^*** 

and  1152,  introduced  them  into  England,  upon  his  accession,  asslzes- 

under  the  name  of  assizes.     To  the  student  of  English  law, 

the  Great  Assize,  and  the  assizes  of  novel  disseizin,  mart 

d'ancester,  and  darrien  presentment,  the  leading  recognitions 

in  civil  matters,  are  the  most  familiar.     The  primary  object 

of  the  Great  Assize,  as  described  by  Glanvill,  was  to  furnish 

to  those  assailed  in  their  freeholds  a  reasonable  and  equitable 

method  of  trial  by  witnesses  taken  from  the  neighborhood 

in  lieu  of  trial  by  battle.    The  proceedings  in  the  other  assizes 

1  Bigelow,  History  of  Procedure,  p.  175,  note  4,  pp.  335,  336. 

2  The  community  witnesses  now  appear  as  the  sworn  recognitors  of  the  as- 
size.    "Soweit   nach    alterem    Rechte  ein   Gemeindezeugniss,   sei  es   in   den 
Formen  des  frankish-normannischen  oder  des  angelsachsischen  Verfahrens  in 
Anwendung  war,  hat  dasselbe  unter  dem  Einflusse  der  Recognitionen  und  der 
Konigsgerichtlichen  Praxis  allmahlich  den  Charakter  einer  Inquisitio  ex  jure 
angenommen."     Brunner,  Schwurgerichte,  p.  382. 

3  Glanvill,  lib.  2,  c.  17,  §  4. 


282 


THE  SCIENCE  OF  JURISPRUDENCE 


Fortescue's 
description 
of  jury 

system. 


AB  the 
fittest  it 
survived. 


were  substantially  the  same,  with  the  exception  that  the  sheriff 
himself  selected  the  twelve  recognitors  without  the  interven- 
tion of  the  four  lawful  knights  of  the  Great  Assize.1  It  re- 
quired the  concurrent  testimony  or  verdict  of  twelve  witnesses 
or  recognitors  to  be  conclusive  of  the  right.2  If  any  of  the 
jurors  were  uninformed  as  to  the  matter  concerning  which 
they  were  to  swear,  those  who  were  informed  were  added 
to  or  afforced  until  at  least  twelve  were  found  who  could  unite 
in  a  definite  conclusion  in  favor  of  one  side  or  the  other.  By 
degrees  this  clumsy  system,  as  stated  already,  was  improved 
by  separating  the  afforcing  jurors  from  the  uninformed  jurors, 
who,  being  thus  relieved  altogether  of  their  character  as  wit- 
nesses, became  judges  of  evidence  detailed  by  others.  From 
the  account  given  of  juries  by  Fortescue  in  his  treatise, 
written  between  1460  and  1470,  it  is  quite  clear  that  this 
final  stage  in  the  development  of  the  trial  jury  in  civil  cases 
must  have  been  reached  by  the  middle  of  the  fifteenth  century. 
Rather  by  the  silent  force  of  its  own  intrinsic  excellence  than 
by  the  artificial  stimulus  of  legislation,  trial  by  jury  gradually 
exterminated  all  other  methods  of  trial  ever  employed  in 
England  for  the  settlement  of  issues  in  which  disputed  facts 
were  in  question.  By  the  force  of  the  law  of  natural  selection 
it  outlived  them  all,  —  as  the  fittest  it  survived.  And  so  as 
all  other  methods  of  trial  gradually  fell  into  disuse,  and  as  the 
king's  courts  held  in  the  shires  were  gradually  relieved  of 
all  fiscal  and  administrative  work,  the  county  parliaments, 
originally  convened  to  meet  the  itinerant  justices,  were  slowly 
transformed  into  the  modern  courts  of  assize,3  in  which  the 
itinerant  justices  still  preside,  but  in  which  the  general 

1  Glanvill,  lib.  xiii.,  cc.  i.  2  sq. ;  Reeves,  History  of  English  Law,  i.  443, 
Pollock  and  Maitland,  History  of  English  Law,  i.  144-149. 

3  And  no  subsequent  action  could  be  brought  on  the  same  claim.  Glanvill, 
lib.  ii.,  c.  18. 

3  As  to  the  distinction  between  such  courts  of  assize  and  the  ancient  county 
courts  which  met  from  month  to  month,  see  Taylor,  The  Origin  and  Growth 
of  the  English  Constitution,  i.  319,  320. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  283 

assembly  of  the  shire  is  represented  only  by  the  grand 
and  petty  jurors  summoned  by  the  sheriff  for  the  dispatch 
of  the  civil  and  criminal  business  to  be  disposed  of. 

10.  From  what  has  now  been  said  it  clearly  appears  that  The  winning 
the  vast  powers  consolidated  in  the  hands  of  the  crown  through  charters, 
the  centralization  of  finance  were  soon  augmented  by  the 
centralization  of  justice.  Not  until  the  principle  was  firmly 
established  that  the  king  was  the  fountain  of  justice  and  that 
all  courts  were  the  king's  court,  did  it  become  possible  for  the 
king  to  invade  with  his  writ  any  jurisdiction  and  to  withdraw 
from  it  any  cause  whatsoever.  Through  the  instrumentality 
of  the  Norman  writ  process  in  its  various  forms,  the  curia 
regis  persistently  encroached  upon  the  popular  and  franchise  Encroach- 
courts  until  the  main  body  of  the  judicial  business  was  finally 
withdrawn  from  them  into  the  royal  tribunals.  This  vast 
concentration  of  powers  around  the  person  of  the  king,  this 
constant  withdrawal  of  jurisdiction  from  the  local  and  popular 
courts  into  a  single  central  and  royal  court,  naturally  and 
necessarily  resulted  in  the  vesting  in  the  Norman  system  of 
central  administration  as  embodied  in  the  crown  and  abnor- 
mal preponderance  both  in  power  and  authority.  Out  of 
that  condition  of  things  arose  the  gravest  political  problem 
to  which  the  constitutional  growth  of  the  English  nation 
has  given  birth.  That  problem  was  so  to  limit  the  royal 
authority,  so  to  combine  the  vigorous  Norman  system  of 
central  administration  with  the  laxer  system  of  Old-English 
local  freedom,  as  to  preserve  the  counterpoise  between  the 
two,  and  at  the  same  time  retain  in  the  new  combination  the 
strongest  elements  of  both.  In  the  effort  to  work  out  that 
result  the  prolonged  and  bitter  struggle  for  the  charters  had 
its  birth.  That  struggle  did  not  grow  out  of  any  vague  appre-  Origin  of 
hension  of  possible  evils  that  might  arise  out  of  the  unequal 
adjustment  of  the  Norman  central  system  to  the  Old-English  charters- 
system  of  local  freedom  embodied  in  the  township,  the  him- 


284 


THE  SCIENCE  OF  JURISPRUDENCE 


Parties  to 
the  conflict. 


Growth  of 
the  estate 
system. 


Clergy, 
baronage, 
and 
commons. 


dred,  and  the  shire.  Neither  did  it  grow  out  of  the  mere 
possession,  by  wise  and  politic  princes  of  the  type  of  Henry  I. 
and  his  grandson  Henry  II.,  of  vast  and  unlimited  powers 
never  deliberately  employed  for  purposes  of  oppression  merely. 
Not  until  the  grinding  weight  of  the  central  and  royal  author- 
ity was  actually  and  wantonly  applied  by  careless  despots  to 
the  oppression  of  all  classes  and  conditions  of  men  did  the 
collective  people,  in  the  persons  of  the  three  estates,  rise  up 
as  one  man  to  grapple  with  the  crown  in  a  struggle  for  the 
establishment  of  rights  which  were  made  eternal.  The  two 
parties  to  the  contest  are,  therefore,  the  central  or  royal 
authority,  on  the  one  hand,  and  the  nation,  marshaled  in 
the  ranks  of  the  three  estates,  on  the  other. 

The  causes  that  brought  about  the  establishment  of  the 
estate  system  were  general  in  their  operation,  and  in  each 
of  the  European  countries  the  result  was  reached  about  the 
same  time,  the  thirteenth  century.  During  that  period  was 
established  in  Europe  that  type  of  a  national  assembly  into 
which  the  several  classes  or  orders  of  society  entered  in  the 
form  of  definitely  organized  estates.  The  estate  system 
itself  consisted  of  the  division  of  a  nation  into  definite  classes 
or  orders  of  men;  the  outcome  of  the  system  was  that  type 
of  a  national  assembly  in  which  each  class  or  order  appeared 
in  person  or  by  representatives.  In  each  country  the  system 
has  its  special  or  local  history,  but  as  a  general  rule  in  all 
the  European  constitutions  the  three  political  factors  are 
arranged  upon  substantially  the  same  principle.  In  the 
history  of  the  English  nation  the  three  estates  appear  as  the 
clergy,  the  baronage,  and  the  commons,  and  not,  as  is  often 
erroneously  stated,  as  the  king,  lords,  and  commons.1  Ac- 
cording to  no  medieval  theory  of  government  could  the  king 
be  considered  an  estate  of  the  realm.  As  Chancellor  Stilling- 


1  An  argument  in  favor  of  that  now  obsolete  view  may  be  found  in  White- 
locke's  work  on  the  Parliamentary  Writ,  ii.  43. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  285 

ton  quaintly  expressed  it,  in  the  7th  of  Edward  IV.,  "This 
land  standeth  by  three  estates,  and  above  that  one  principal, 
that  is,  to  wit,  lords  spiritual,  lords  temporal,  and  commons, 
and  over  that  state  royal,  as  our  sovereign  lord  the  king."  * 
A  review  has  been  made  already  of  the  policy  of  William 
and  Lanfranc  that  resulted  in  the  establishment  in  England 
of  a  distinct  system  of  ecclesiastical  courts  and  councils  in 
which  the  church  could  judge  and  legislate  upon  its  own 
affairs  free  from  secular  interference,  so  long  as  it  keeps 
within  certain  limits  imposed  by  the  royal  authority.2  Ec- 
clesiastically England  is  divided  into  the  two  provinces  of  Ecciesiasti- 
Canterbury  and  York,  whose  subdivisions  closely  coincide  andcouru!8 
with  the  subdivisions  of  the  kingdom  itself.  As  the  shire  is 
the  largest  and  most  important  division  of  the  kingdom,  so 
the  diocese  is  the  largest  and  most  important  division  of  the 
province.  And  as  the  shire  moots  were  the  most  important 
local  courts  in  the  kingdom,  so  the  diocesan  councils  were 
the  most  important  local  courts  in  the  church.  As  out  of 
the  ancient  county  court  held  by  the  king's  judges  in  the 
shire  was  slowly  developed  the  modern  court  of  assize,  so 
out  of  the  diocesan  council  was  developed  by  a  process  whose 
history  is  somewhat  obscure  the  consistory  court  held  by 
each  diocesan  bishop  for  the  trial  of  all  ecclesiastical  causes 
arising  in  the  diocese.3  The  subdivisions  of  the  diocese  Diocese  and 
roughly  correspond  with  those  of  the  county.  As  each  c 
county  is  divided  into  hundreds,  and  each  hundred  into 
townships,  so  each  diocese  is  divided  into  archdioceses, 

1  Rot.  Parl.  v.  622.     The  treaty  of  Staples,  in  1492,  was  to  be  confirmed  "per 
tres  status  regni  Angliae  rit6  et  debite  convocatos,  videlicet  per  prelatos  et 
clerum,   nobiles,   et  communitales  ejusdem   regni."     Rymer,   xiii.   508.     "In 
England  .  .  .  the  clergy  have  been  esteemed  one  estate,  the  peers  of  the  realm 
the  second  estate,  and  the  commons  of  the  realm,  represented  in  parliament  by 
persons  chosen  by  certain  electors,  the  third  estate."     Lords'  Report,  i.  118. 

2  See  above,  p.  255  sq. 

*  "The  history  of  the  development  of  these  councils,  and  of  the  settlement  of 
their  judicial  functions,  resulting  in  a  fixed  tribunal  of  the  English  constitution, 
is  very  obscure. "  Bigelow,  History  of  Procedure,  p.  28. 


286 


THE  SCIENCE  OF  JURISPRUDENCE 


Election 
of  bishops. 


Estate  of 
the  peerage 
identical 
with  House 
of  Lords. 


each  archdiocese  into  rural  deaneries,  and  each  deanery  into 
parishes.1  The  unit  of  organization  in  each  is  the  same,  — 
the  parish,  as  a  general  rule,  simply  represents  the  township 
in  its  ecclesiastical  aspect.  Not  until  the  reign  of  Henry  I. 
did  the  right  to  elect  the  bishops  finally  pass  from  the  king 
and  witan  to  the  chapters  of  the  cathedral  churches,  coupled 
with  a  serious  limitation  in  favor  of  the  royal  authority.2 
It  was  required  that  the  choice  of  the  chapter  should  be 
preceded  by  the  royal  license,  and  that  it  should  be  followed 
by  the  presentment  of  the  bishop-elect  for  the  royal  approval. 
The  necessity  for  the  royal  license  preserved  in  substance 
to  the  crown  the  right  of  nomination.  This  right  of  canonical 
election,  confirmed  by  Stephen  at  his  accession,3  and  rec- 
ognized in  turn  by  Henry  II.  and  Richard  I.,  was  finally 
confirmed  by  John  in  a  charter  issued  to  the  church  a  short 
time  before  the  granting  of  the  Great  Charter  itself.4  But 
even  after  his  election  by  the  cathedral  chapter  an  arch- 
bishop could  not  consider  himself  fully  inducted  into  office 
until  his  right  had  been  finally  confirmed  by  the  see  of  Rome.5 
From  the  reign  of  Edward  I.  the  estate  of  the  baronage 
or  peerage  has  been  identical  with  the  House  of  Lords.6  The 
hereditary  and  official  councilors  of  the  crown  who  con- 
stitute the  upper  house  of  Parliament  represent  the  entire 
estate  of  the  baronage,  —  they  do  not  represent  a  wider 
noble  class  or  caste  of  which  they  themselves  are  but  a  part. 

1  As  to  the  relations  between  the  parish  and  township,  see  Taylor,  The  Origin 
and  Growth  of  the  English  Constitution,  i.  143  sq. 

2  The  struggle  between  Henry  I.  and  Anselm  on  the  question  of  investitures 
ended  in  a  compromise  that  placed  the  election  in  the  hands  of  the  chapters 
of  the  cathedrals. 

*  For  Stephen's  charter,  see  Statutes  of  the  Realm,  Charters  of  Liberties,  p.  3. 

*  For  John's  charter,  see  Ibid.,  p.  5. 

•  In  early  times  an  archbishop  was  expected  to  be  invested  with  the  pallium 
at  Rome.     Lingard,  Anglo-Saxon  Church,  p.  205.     Gregory  and  his  immediate 
successors  excused  the  English  metropolitans  from  so  long  a  journey  and  sent 
the  pall  by  messengers.     Wilkins,  Concilia,  pp.  32,  35.     See  also  Stubbs,  Regis- 
trum  Sacrum  Anglicanum,  pp.  140,  141. 

•  Lords'  Report,  i.  390. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  287 

The  only  nobleman  known  to  English  law  is  he  who  holds 
the  hereditary  office  of  a  peer.  The  right  to  inherit  such  an 
office  the  law  concedes  to  the  peer's  eldest  son,  but  it  concedes 
no  other  right  to  his  children.1  After  the  transformation  of 
the  ancient  assembly  into  the  king's  court  of  feudal  vassals, 
the  practice  of  summons  finally  settled  the  fact  that  no  one 
was  to  attend  unless  he  was  summoned,  and  no  one  was 
summoned  unless  he  was  a  tenant-in-chief.  The  greater 
tenants-in-chief,  who  received  personal  summons,  and  whose 
right  to  receive  the  same  became  hereditary,  represent, 
together  with  the  lords  spiritual,  the  peerage  of  England.2 
Every  peer,  whether  temporal  or  spiritual,  holds,  or  is 
supposed  to  hold,  an  ancient  barony  directly  of  the  king.3 
Under  the  system  of  feudal  law  which  Flambard  seems  to  have 
worked  into  a  definite  shape,  the  bishops  and  abbots  were 
made  to  assume  the  relation  of  tenants-in-chief,  holding 
baronies  of  the  crown  "sicut  barones  ceteri,"  and  in  that  way 
the  idea  grew  up  that  bishops  and  abbots  sat  in  Parliament  status  of 
by  virtue  of  their  baronial  tenure  only.4  But  the  sounder  abbots! " 
view  seems  to  be  that,  as  a  part  of  the  witan  of  the  realm, 
the  prelates  never  lost  their  immemorial  right  to  sit  in  the 
national  assembly.  To  this  right  was  simply  added  the  new 
right  growing  out  of  their  feudal  relations;  the  title  of 
"barones"  was  simply  added  to  that  of  " sapientes."  5 

If  we  subtract  from  the  English  nation  as  constituted  in 
the  thirteenth  century  the  estate  of  the  clergy  and  the  estate 

1  The  theory  that  mere  nobility  of  blood  conveys  political  rights  or  privileges 
has  never  been  recognized  in  the  English  system. 

2  No  reference  is  here  made  to  life  peerages. 

8  But  the  simple  holding  of  a  barony  was  not  of  itself  a  sufficient  ground  for 
requiring  attendance  in  Parliament ;  a  writ  of  summons  did  not  necessarily  fol- 
low tenure  by  barony.  Lords'  Report,  i.  326,  342.  As  to  the  elements  necessary 
to  constitute  the  baronial  honor  or  estate,  see  Hallam,  M.  A.,  iii.  9, 117 ;  Stubbs, 
Constitutional  History,  ii.  178;  Selden,  Works,  iii.  178;  Madox,  Baronia  Anglica. 
No  precise  or  satisfactory  definition  of  a  barony  has  resulted  from  these  inquiries. 

4  For  that  view,  see  Lords'  Report,  i.  393. 

4  Hody,  History  of  Convocations,  p.  126 ;  Freeman,  Norman  Conquest,  v.  279. 


288 


THE  SCIENCE  OF  JURISPRUDENCE 


Estate 
of  the 

commons. 


Pressure 
of  royal 
authority 
under 
Richard  I. 


of  the  baronage,  the  remainder  represents,  although  in  a  very 
vague  and  general  sense,  the  third  estate,  —  the  estate  of 
the  commons,  —  a  term  which  in  England  has  always  em- 
braced not  only  freemen  incorporated  in  towns,  but  freemen 
incorporated  in  shires.  There  the  commonalty  as  organized 
in  shires  were  the  first  to  send  delegates  to  Parliament  in  the 
persons  of  the  knights  of  the  shire,  representatives  of  the 
lesser  landholders,  who,  after  severing  themselves  from  the 
baronage,  united  upon  equal  terms  with  the  representatives 
of  the  towns  in  the  formation  of  the  third  estate.  That 
estate  thus  acquired  in  England  a  vital  element  of  strength 
which  in  continental  lands  it  did  not  possess.1 

With  the  wanton  and  irritating  pressure  of  the  royal 
authority  upon  every  class  in  the  reign  of  Richard  I.,  the 
struggle  for  the  charters  really  begins.  From  a  constitutional 
standpoint  the  reign  of  Richard  I.  is  chiefly  interesting  in  so 
far  as  it  illustrates  the  improvements  in  the  system  of  taxa- 
tion suggested  by  its  constant  use,  and  the  oppressions  that 
arose  out  of  its  incessant  application  to  all  classes  and  con- 
ditions of  men.  In  1192  Richard  demanded  for  his  ransom 
£100,000,  double  the  revenue  of  his  kingdom.2  In  1196  it 
was  that  the  poorer  citizens  of  London  broke  into  open  revolt 
at  the  manner  in  which  the  talliage  was  collected ; 3  and  two 
years  later  a  fresh  demand  for  money  from  the  baronage  led 


1  In  medieval  times  the  "commons  "  on  the  Continent  were  understood  to 
embrace  only  the  citizens  of  privileged  towns,  or  of  chartered  communities  of 
kindred  municipal  origin.  As  to  France,  cf.  Thierry,  History  of  the  Tiers-Etat, 
i.  56  (English  translation)  ;  Savaron,  Etats  generaux,  p.  74.  As  to  Spain,  cf. 
Schafer,  Spanien,  iii.  215,  218 ;  Zurita,  i.  fol.  71,  74.  On  the  Aragonese  cortes, 
see  Hallam,  Middle  Ages,  ii.  58,  and  notes.  The  term  "commons"  originally 
bore  the  same  meaning  in  the  constitution  of  Scotland.  As  to  the  change  made 
in  that  constitution  in  1427,  whereby  commissioners  of  shires  were  permitted  to 
appear  in  Parliament  as  the  representatives  of  the  minor  tenants-in-chief,  see 
Lords'  Report,  i.  111-124. 

'Hoveden,  iii.  208,  210,  217,  222;  see  also  Preface  to  Hoveden,  iv.,  Ixxxiii., 
Rolls  Series. 

»  For  the  history  of  the  rising,  see  Will.  Newb.  v.,  c.  20 ;  R.  Diceto,  c.  691 ; 
Hoveden,  iv.  5  and  6,  and  Preface,  iv.,  Ixxxix. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  289 

to  a  revolt  in  a  higher  sphere.1  In  that  year  opposition  upon 
the  part  of  the  religious  houses  to  oppressive  taxation  brought 
upon  the  clergy  a  royal  proclamation  by  which  they  were 
practically  outlawed.2  The  accession  of  John  in  1199  and  Accession 
the  loss  of  Normandy  in  1204  quickened  the  pace  of  events.  °oss^fn  * 
With  the  conquest  of  Normandy  by  Philip,  the  last  direct  Normandv- 
connection  of  the  baronage  of  England  with  the  land  of  their 
fathers  passed  forever  away.  This  complete  severance  of  all 
connection  with  the  Continent,  whereby  the  barons  of  Norman 
descent  who  had  grown  up  on  English  ground  were  finally 
transformed  into  Englishmen,3  was  the  completion  of  the 
great  work  that  had  been  steadily  going  on  since  the  Con- 
quest, the  work  of  building  up  a  united  English  nation,  at 
whose  head  stood  the  baronage  throughout  the  prolonged 
struggle  in  which  the  Great  Charter  was  won.  The  constitu- 
tional struggle  opens  with  the  famous  quarrel  which  brought 
John  into  conflict  not  only  with  the  clergy  of  his  own  realm,  John  and 
but  with  the  greatest  of  all  the  popes,  —  Innocent  III.  With  jj"00 
the  consecration  of  Langton  the  trial  of  strength  between 
the  pope  and  the  king  actively  begins.  On  the  day  appointed, 
March  23,  1208,  the  threatened  interdict  fell  upon  the  land,4 
and  John  in  his  wrath  banished  the  bishops  who  had  pro- 
claimed it,  and  confiscated  the  estates  of  those  of  the  clergy 
who  observed  it.  Thus  ended  in  anger  that  long  alliance 
between  king  and  clergy  which  William  and  Lanfranc  had 
built  up,  and  which  the  quarrels  of  Anselm  and  of  Thomas 
had  never  completely  broken  down.  The  church,  so  long 

1  As  to  the  constitutional  importance  of  that  event,  see  Preface  to  Hoveden, 
iv.,  Ixxxi. ;  Freeman,  Norman  Conquest,  v.  465. 

*  The  clergy  opposed  the  extension  to  them  of  a  carucage  upon  the  lands  of 
the  freeholders  at  the  heavy  rate  of  five  shillings  on  each  carcucate  or  hide. 
Hoveden,  iv.  46. 

*  Families  that  still  retained  estates  on  both  sides  of  the  Channel  either  split 
into  two  branches,  each  of  which  made  terms  for  itself,  or,  renouncing  their 
interest  in  one  kingdom,  cast  their  fortunes  with  the  other.     Hallam,  Middle 
Ages,  iii.  154. 

«M.  Paris,  ii.  115,  116. 


290 


THE  SCIENCE  OF  JURISPRUDENCE 


John 
and  the 
baronage. 


Council  at 
St.  Alban's, 
August  4, 
1213. 


Council  at 
St.  Paul's, 
August  25. 


the  steadfast  support  of  the  crown  against  the  baronage,  was 
now  changed  from  a  faithful  ally  into  a  dangerous  enemy. 
The  defection  of  the  baronage,  which  had  crushed  John's 
hopes  in  the  presence  of  Philip,  still  stood  as  a  menace  before 
him.  The  breach  originally  opened  by  the  king's  faithlessness 
was  widened  and  deepened  in  each  succeeding  year  by  the 
shameless  pressure  of  taxation,  by  acts  of  wanton  despotism 
in  individual  cases,  and  by  a  number  of  lustful  assaults  upon 
the  honor  of  the  proudest  of  the  baronial  families.1  Open 
resistance  on  the  part  of  the  nobles  begins  with  their  refusal 
in  the  summer  of  1213  to  follow  John  to  France  upon  the 
ground  that  he  was  still  excommunicated.  In  a  storm  of 
rage  at  their  defiance,  John,  on  the  25th  of  August,  marched 
rapidly  northward  to  force  them  to  submission.2  Three 
weeks  prior  to  that  time,  a  memorable  council  was  held  at 
St.  Alban's,  to  which  were  summoned  not  only  the  bishops 
and  barons,  but  also  the  reeve  and  four  legal  men  as  repre- 
sentatives from  each  township  on  the  royal  demesne.3  This 
gathering,  although  called  simply  to  assess  the  damages  due 
to  the  church,  assumed  in  its  deliberations  a  far  wider 
scope.  The  laws  of  Henry  I.  —  the  embodiment  of  the 
laws  of  King  Eadward  as  amended  by  King  William  —  were 
brought  to  the  attention  of  the  assembly  by  the  justiciar 
Geoffrey  Fitz-Peter,  and  proclaimed  as  the  basis  upon  which 
the  liberties  of  the  nation  were  to  be  reestablished.4  In 
a  second  gathering  of  the  barons  held  at  St.  Paul's  in  London 

1  "The  licentiousness  of  his  amours  is  reckoned  by  every  ancient  writer  among 
the  principal  causes  of  the  alienation  of  his  barons."     Lingard,  ii.  78. 

2  Langton  reminded  him  that  he  had  no  right  to  make  war  on  them  until 
they  had  first  been  heard  in  the  king's  court.     "Si  absque  judicio  curiae  suae 
contra  quempiam,  nedum  suos  homines  geniales,  bellum  moveret."     M.  Paris, 
ii.  142. 

3  "  In  crastino  autem  misit  rex  litteras  ad  omnes  vicecomites  regni  Angliae, 
praecipiens  ut  de  singulis  dominicorum  suorum  villis  quatuor  legales  homines 
cum  praeposito  eapud  Sanctum  Albanum  pridie  nonas  Augusti  facerent  conve- 
nire."     M.  Paris  (ed.  Wats),  p.  239. 

4  "Quatenus  leges  Henrici  avi  sui  ab  omnibus  in  regno  custodirentur,  et  omnes 
leges  iniquae  penitus  enervarentur. "     M.  Paris,  Ibid.,  p.  239. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  291 

on  the  25th  of  the  same  month,  Langton  produced  and  read 
the  charter  of  Henry  I.,  which  was  warmly  accepted  as  the 
basis  of  national  action.1  The  claims  of  the  council  of  St. 
Alban's  and  St.  Paul's  were  laid  before  the  king  by  the 
judiciar,  who  died  almost  immediately  thereafter,2  leaving 
the  guidance  of  the  baronage  to  Langton,  under  whose 
leadership  they  united,  upon  the  basis  of  Henry's  charter, 
in  an  open  demand  for  a  definite  and  positive  scheme  of 
national  reform.  In  November,  1214,  the  barons,  under 
pretext  of  a  pilgrimage,  assembled  secretly  at  the  abbey  Meeting 
of  St.  Edmund  for  the  purpose  of  casting  into  a  final  shape  Edmund's, 


the  schedule  of  liberties  they  had  resolved  to  force  upon 
the   king.     Early   in   January,    1215,   the   united   baronage 
met  in  arms,  and  on  May  the  24th  London  threw  open  her 
gates  to  the  patriot  host,  and  Exeter  and  Lincoln  followed 
her  example.     In  order  to  save  himself  from  the  final  humilia- 
tion of  unconditional  surrender,  John  attempted  to  conceal 
the  real  nature  of  the  submission  about  to  be  made  under 
the  cloak  of  a  negotiation.     With  that  end  in  view  he  in- 
vited the  barons  to  a  conference  on  an  island  in  the  Thames 
between  Windsor  and  Staines,3  near  the  meadow  of  Runny- 
mede.     On  June  15th  the  delegates  met  on  that  island  in  Great 
view  of  the  opposing  forces,  and  after  going  through  the  SgnSdT 
form  of  a  negotiation,  agreed  upon  the  Great  Charter  of  ^5  16) 
liberties  in  a  single  day.4 

An  analysis  of  the  Great  Charter,  when  made  in  the  light  Analysis  of 
of  the  circumstances  attending  its  execution,  clearly  reveals  charter** 
the  fact  that,  although  issued  in  the  form  of  a  royal  grant, 

A  treaty  or 

it  was  in  substance  a  treaty  or  compact  5  entered  into  between  compact. 

1  Ibid.,  p.  240  ;  Ann.  Waverl.,  p.  178. 

2  M.  Paris,  p.  243  ;   Walter  of  Coventry,  ii.  215. 

*  "  Data  per  manum  nostram    in  prato  quod  vocatur  Runnymede,  inter 
Windelesorum  et  Stanes."     Magna  Carta,  §  63. 

*  For  the  general  history  of  the  crisis,  see  M.  Paris  (ed.  Wats),  pp.  252-255; 
Walter  of  Coventry,  ii.  219-229.     See  also  Blackstone's  Preface  to  Magna  Carta. 

*  M.  Boutmy,  in  his   comments   on  the  "Constitution  Anglais,"  has  this  to 
say:    "Les  pactes  sont  au   nombre  de    trois  :   la  grande   Charte   (1215)   .  .  . 


292 


THE  SCIENCE  OF  JURISPRUDENCE 


Consum- 
mation of 
union. 


the  royal  authority  on  the  one  hand  and  the  nation  mar- 
shaled in  the  ranks  of  the  three  estates  on  the  other.  There 
is  nothing  in  the  provisions  of  the  charter  to  recall  obsolete 
distinctions  of  English  and  Norman  blood;  there  is  nothing 
to  suggest  differences  of  English  and  Norman  law.  The 
winning  of  the  charter  was  in  fact  the  final  consummation 
of  the  work  of  union;  it  was  the  act  of  the  united  nation, 
the  church,  the  barons,  and  the  commons,  for  the  first  time 
thoroughly  at  one.  There  is  no  attempt  to  wipe  out  the 
irrevocable  effects  of  the  Conquest.  The  new  system  of 
central  administration  and  the  system  of  feudal  tenures  are 
both  recognized  as  abiding  elements  in  the  constitution. 
Effort  to  The  effort  is  to  fix  the  limits  of  innovation,  to  define  the 

fix  limits  of  i-ii  T    •  i-    • 

innovation,  extent  to  which  the  centralizing  and  feudalizing  processes  to 
which  the  Conquest  gave  birth  shall  be  permitted  to  abridge 
the  immemorial  freedom  in  the  time  to  come.  In  that  vital 
question  each  estate  is  interested  as  a  corporate  entity,  and 
the  nation  as  a  whole  is  also  interested  as  a  corporate  entity. 
The  provisions  of  the  Great  Charter,  therefore,  fall  naturally 
into  two  broad  divisions:  first,  those  that  specially  relate 
to  the  rights  and  privileges  of  the  three  estates;  second, 
those  that  relate  to  the  rights  and  privileges  of  the  nation  as 
a  whole.  To  the  estate  of  the  clergy  the  king  promised  that 
the  Church  of  England  should  be  free  and  that  she  should 
have  her  whole  rights  and  liberties  inviolable,1  including 
the  right  to  hold  free  elections  lately  guaranteed  in  a  charter 
twice  issued.  To  the  estate  of  the  baronage,  consisting  of 
the  greater  tenants-in-chief  who  held  directly  of  the  crown, 
the  charter  guaranteed  many  limitations  and  safeguards  in 

Le  caractere  de  cet  acte  est  ais6  a  d£finir.  Ce  n'est  pas  pre'cis&nent  un  trait£, 
puis  qu'il  n'y  a  pas  ici  deux  souverainete's  le'gitimis  ni  deux  nations  en  presence ; 
ce  n'est  pas  non  plus  une  loi ;  elle  serait  entach^e  d 'irregularity  et  de  violence ; 
c'est  un  compromis  ou  un  pacte."  Etudes  de  droit  constitutionnel,  pp.  39-41 
(Paris,  1885). 

1  "Anglicana  ecclesla  libera  sit,  et  habeat  jura  sua  Integra,  et  libertates  suas 
illaesas."    Art.  1. 


Church 
guaranteed 
free  elec- 
tions. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  293 

mitigation  of  the  feudal  dues  and  services  due  by  virtue  of  Baronage 
their  tenures  to  the  king  as  supreme  landlord.  And  it  was  feudal 
further  provided  that  "all  the  aforesaid  customs  and  liberties  burdena- 
that  we  have  granted  to  be  held  in  our  kingdom,  so  far  as 
pertaining  to  us,  with  reference  to  our  vassals,  all  men  of  OUT 
kingdom,  as  well  clerk  as  lay,  shall  observe  so  far  as  pertains 
to  them,  with  reference  to  their  men."  *  In  that  way  the 
feudal  burdens  are  limited  not  only  in  favor  of  the  baronage 
as  against  the  king,  but  also  in  favor  of  all  undertenants  as 
against  the  mesne  lords  themselves.  The  feudal  clauses 
that  stand  next  in  importance  are  those  that  impose  re- 
straints upon  the  exactions  of  lords  in  the  matter  of  reliefs, 
wardships,  and  marriages.2  In  order  to  check  the  growing 
practice  of  subinfeudation,  it  was  provided  in  the  second  Subin- 
reissue  of  1217  that  no  tenant  should  give  or  sell  to  another 
so  much  of  his  land  as  would  render  the  remainder  insufficient 
to  answer  the  services  due  to  the  lord  of  the  fee.3  As  stated 
heretofore,  the  term  "commons,"  as  it  appears  in  England,  The 
must  be  understood  to  include  all  freemen,  below  baronial 
rank,  organized  and  incorporated  for  government  in  shires 
and  towns.  First  among  the  provisions  designed  for  the  pro- 
tection of  this  estate  is  that  clause  which  provides  that  the 
city  of  London  shall  have  all  its  ancient  liberties  and  free 
customs,  as  well  by  land  as  by  water;  and  further  that  all 
other  cities,  boroughs,  towns,  and  ports  shall  have  all  of  their 
liberties  and  free  customs.4  In  that  provision  we  have  a 
definite  recognition  of  the  rights  of  the  "commons"  as  organ- 
ized in  town  communities.  In  the  clause  which  provides  that 

1  Art.  60. 

8  As  to  the  right  of  the  heir,  if  of  full  age,  to  have  his  inheritance  upon  the 
payment  of  a  fixed  sum  referred  to  as  the  "ancient  relief,"  see  Reeves,  History 
of  English  Law,  i.  382 ;  ii.  20. 

*  "Nullus  liber  homo  de  cetero  det  amplius  alicui  vel  vendat  de  terra  sua 
quam  ut  de  residue  terrae  suae  possit  sufficienter  fieri  domino  feodi  servitium  ei 
debitum  quod  pertinet  ad  feodum  illud."  Magna  Carta  (1217),  art.  xxxix. 

4  Art.  13. 


294. 


THE  SCIENCE  OF  JURISPRUDENCE 


Merchant 
class. 


Constitu- 
tion of 
national 
council. 


Taxation. 


all  "  counties,  hundreds,  wapentakes,  and  tithings  shall  stand 
at  the  old  rent,  without  any  increase,  except  in  manors  or 
royal  demesne,  we  have  a  recognition  of  the  rights  of  the 
'commons,'  as  organized  in  shire  communities."  1  "Neither 
town  nor  tenant  shall  be  distrained  to  make  bridges  or 
banks,  unless  that  anciently  of  right  they  are  bound  so  to 
do."  2  In  behalf  of  the  merchant  class  it  is  provided  that, 
except  in  time  of  war,  they  shall  come  in  and  go  out  of  the 
kingdom  without  paying  more  than  the  ancient  and  allowed 
customs.3 

First  among  the  clauses  that  embody  the  rights  and  im- 
munities of  the  people  as  a  whole,  regardless  of  their  division 
into  classes,  stand  the  great  constitutional  provisions  relat- 
ing to  the  organization  and  powers  of  the  national  council, 
to  the  procedure  of  the  king's  court,  and  to  the  general 
administration  of  justice.  It  was  provided  that  no  scutage 
or  aid,  other  than  the  regular  feudal  aids,  shall  be  imposed 
but  by  the  common  counsel  of  the  nation ; 4  and  this  common 
counsel  can  only  be  taken  in  a  national  assembly  summoned 
in  the  manner  the  law  directs.5  The  immemorial  right  of  the 
national  assembly  to  join  with  the  king  in  ordaining  taxes 
—  a  right  never  entirely  ignored  even  among  the  Norman 
and  Angevin  reigns  —  was  thus  stated  with  a  precision  and 
clearness  for  which  the  nation  itself  seems  to  have  been 
hardly  prepared.  In  the  many  conformations  in  the  charter 
that  followed  in  the  succeeding  reign,  these  vital  clauses  as 
to  taxation  and  the  national  council  were  invariably  omitted. 
Not  until  the  latter  part  of  the  reign  of  Edward  I.  was  the 
right  of  self-taxation  they  embodied  finally  restored  as  a 
part  of  the  "Confirmatio  Cartarum"  to  a  permanent  place 
in  the  constitution.  In  order  to  lessen  the  hardships  of 

»  Art.  25.  a  Art.  23.  *  Art.  41. 

4  "Nullum  scutagium  vel  auxilium  ponatur  in  regno  nostro,  nisi  per  commune 
consilium  regni  nostri,"  etc.     Art.  12. 

5  That  direction  is  embodied  in  art.  14. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  295 

suitors  l  who  were  obliged  to  follow  the  king's  court,  it  was 
provided  "that  common  pleas  shall  not  follow  our  court, 
but  shall  be  holden  in  some  certain  place."  2    This  provision 
led  to  the  fixing  of  the  common  pleas  at  Westminster,  which  Common 
broke  up  the  unity  of  the  curia.     But  not  until  the  end  of  aV 
the  reign  of  Henry  III.  was  the  general  staff  permanently  mmster- 
divided   into    three   distinct    courts,  —  exchequer,   common 
pleas,  arid  king's  bench,  —  each  exclusively  devoted  to  the 
hearing  of  a  different  class  of  cases.3 

The  decision  of  all  extraordinary  or  difficult  causes  of  judicial 
a  judicial  nature  was  reserved  to  the  king  in  council,4  the  Of^^^y 
bulk  of  the  business  coming  before  it  in  the  form  of  petitions  counci1- 
divided  into  bundles,  and  then  severally  assigned  to  different 
members,   according  to   their  special   knowledge  of  them.5 
High  among  the  members  of  the  council  stood  the  chancellor,  The 
whose  connection  with  judicial  business  begins  with  the  issu- 
ance of  the  writs  proceeding  from  the  king  as  the  fountain 
of  justice.6    As  a  baron  of  the  exchequer,7  and  as  a  leading 
member  of  the  curia,  the  chancellor  had  long  been  in  pos- 
session of    judicial  functions,  and  so  to  him,  as    to    other 
justices,  were  referred  a  definite  class  of  petitions.     In  that 
way  the  chancellor  was  called  upon  to  decide  a  distinct  class 
of  suits  as  a  judge  according  to  the  rules  of  the  common  law, 
and  hence  the  origin  of    what  is  called  his  "common-law 

1  As  to  the  history  of  the  plea  of  Richard  d'Anesty,  which  "followed  the  per- 
son of  the  king"  for  five  years,  and  which  imposed  upon  D'Anesty  nearly  thirty 
different  journeys,  seePalgrave,  English  Commonwealth,  ii.  ix.-xxvii. ;  Stephen, 
History  of  the  Criminal  Law,  i.  88  sq. 

2  Art.  17.     As  to  the  history  of  that  clause  in  its  relation  to  the  curia  regie, 
see  Madox,  History  of  the  Exchequer,  vol.  i.,  ch.  xix.,  pp.  787-801 ;  Reeves,  ii. 
30-33,  and  notes. 

3  Benedictus,  vol.  ii.,  Preface,  76,  Rolls  Series. 

4  As  to  the  general  character  of  the  causes  reserved  for  the  king,  see  Dialogus 
de  Scaccario,  i.,  c.  8. 

8  Ryley,  Pleadings,  etc.,  pp.  442,  459.     See  Hardy,  Preface  to  the  Close 
Rolls,  i.  xxviii. 

8  Campbell,  Lives  of  the  Chancellors,  i.  3. 
7  Madox,  History  of  the  Exchequer,  p.  131. 


296  THE  SCIENCE  OF  JURISPRUDENCE 

His  com-  j  urisdiction. ' ' 1  The  "  equitable  j urisdiction ' '  of  the  chancellor 
jurbdfction.  naust  be  traced  to  a  higher  source.  One  of  the  leading  objects 
of  dividing  the  petitions  that  came  before  the  council  into 
distinct  classes  was  to  sever  from  the  general  mass  those 
special  "matters  of  grace  and  favor"  which  could  only  be 
,  answered  after  reference  to  the  king  in  person.2  The  ex- 
amination of  this  peculiar  class  of  petitions,  constituting 
a  special  branch  of  business,  devolved  in  such  a  great  degree 
upon  the  chancellor  that  finally  they  began  to  be  addressed 
to  him  in  the  first  instance,  instead  of  being  referred  to  him 
by  the  king.  When,  early  in  the  reign  of  Edward  III.,  the 
chancellor  ceased  to  follow  the  court  as  one  of  the  royal 
retinue,  his  tribunal  began  to  acquire  a  more  distinct  and 
substantive  character;  and  from  the  twenty-second  year 
of  that  reign,  in  which  all  petitions  of  grace  and  favor  were 
recognized  as  his  province,  his  separate  and  independent 
jurisdiction  began  to  grow  in  power  and  importance.3  By 
equitable  jurisdiction  must  be  understood  "the  extraordinary 
interference  of  the  chancellor,  without  common-law  process 
His  or  regard  to  common-law  rules  of  proceeding,  upon  the 

Jurisdiction,  petition  of  the  party  aggrieved,  who  was  without  adequate 
remedy  in  a  court  of  common  law."  4  Thus  the  "equitable 
jurisdiction  of  the  chancellor"  became  one  of  the  three  great 
agencies  that  have  adapted  the  old,  inelastic  code  of  English 
customary  law  to  the  expanding  wants  of  a  progressive 
society,  repeating  the  function  performed  at  Rome  by  the 
praetorian  equity  in  the  expansion  of  the  Twelve  Tables. 
Judicial  First  in  importance  among  the  judicial  clauses  of  the 

dausesof      QTe8A  Charter  stands   that   one   which   provides  that   "no 
Charter.        freeman  shall  be  taken  or  imprisoned,  or  disseized,  or  out- 
lawed, or  exiled,  or  anywise  destroyed;  nor  will  we  go  upon, 
nor  send  upon  him,  but  by  the  lawful  judgment  of  his  peers 

1  Gilbert,  History  of  the  Exchequer,  p.  8.         2  Ryley,  Pleadings,  etc.,  p.  442. 
*  Rot.  Glaus.,  38  Edw.  III. ;  Hardy,  Close  Rolls,  i.,  Preface,  xxviii. 
4  Campbell,  Lives,  i.  7. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  297 

or  by  the  law  of  the  land.  To  none  will  we  sell,  to  none  will 
we  deny  or  delay,  right  or  justice."  *  In  the  reissues  the 
first  provision  appears  with  the  insertion  in  the  second  (2 
Hen.  III.,  1217  A.D.)  and  third  (9  Hen.  III.,  1225  A.D.)  charters 
of  Henry  III.  of  the  words,  "of  his  freehold  or  liberties,  or 
free  customs,"  so  that  the  clause  in  its  final  form  is:  "No 
freeman  shall  be  taken  or  imprisoned  or  disseized  of  his 
freehold,  or  liberties,  or  free  customs  [de  libero  tenemento  suo 
vel  libertatibus,  vel  liberis  consuetudinibus  suis],  or  outlawed, 
or  exiled,"  etc.  The  old  fancy  that  the  "judicium  parium" 
of  this  clause  was  intended  to  guarantee  trial  by  jury  has  jury  trials 
been  dispelled  by  the  discovery  that  jury  trials  did  not  come 
into  existence  until  nearly  a  century  after  that  time.2  The 
guarantee  of  "the  lawful  judgment  of  peers"  referred  only 
to  a  certain  feudal  right  with  which  trial  by  jury  has  no  con- 
nection.3 The  guarantee  that  no  man  should  be  deprived  of 
his  rights  but  "by  the  law  of  the  land"  was  intended  how- 
ever as  an  assurance  that  no  judgment  should  be  rendered 
in  any  arbitrary  proceedings  upon  the  part  of  the  king  which 
deprived  the  defendant  of  any  of  the  known  methods  of  trial 
to  which  he  was  then  entitled.4  As  time  went  on  the  39th 

1  "  Nullus  liber  homo  capiatur,  vel  imprisonetur,  aut  dissaisiatur,  aut  utlage- 
tur  aut  exuletur,  aut  aliquo  modo  destruatur,  nee  super  eum  ibimus,  nee  super 
cum  mittemus,  nisi  per  legale  judicium  parium  suorum  vel  per  legem  terrae." 
Art.  39.  "  Nulli  vendemus,  nulli  negabiinus,  aut  differemus,  rectum  aut  justi- 
ciam."  Art.  40. 

a See  above,  pp.  278  sq.  "For  a  legal  instrument  to  call  the  verdict  of 
recognitors  a  judgment  would  have  been  as  gross  a  blunder  in  1215  as  it  would 
be  at  the  present  time. "  Pollock  and  Maitland,  History  of  English  Law,  i. 
173,  n.,  2d  ed.  For  the  old  view,  now  universally  repudiated,  see  Bagg's  Case, 
as  reported  in  1  Rolle's  Rep.  225 ;  4  Blackst.  Comm.  349;  Thompson  v.  Utah, 
170  U.S.  349 ;  Maxwell  v.  Dow,  176  U.S.  609.  The  matter  is,  however,  cor- 
rectly stated  in  Hurtado  v.  California,  110  U.S.  529.  See  McGehee's  excellent 
treatise  on  "Due  Process  of  Law,"  pp.  5  sq. 

3  The  whole  matter  is  well  put  in  McKechnie,  Magna  Carta,  pp.  158  sq., 
438  sq. 

*"The  expression  'per  legem  terrae'  simply  required  judicial  proceedings, 
according  to  the  nature  of  the  case ;  the  duel,  ordeal,  or  compurgation,  in  crim- 
inal cases,  the  duel,  witnesses,  charters,  or  recognition,  in  property  cases." 
Bigelow,  History  of  Procedure,  155,  n.  See  also  Thayer,  Evidence,  200-201,  for 
a  discussion  of  the  phrase  "lex  terrae." 


298  THE  SCIENCE  OF  JURISPRUDENCE 

Due  process  chapter  was  so  construed  as  to  become  a  guarantee  of  "due 
^uarlnteed.  process  of  law."     It  was  finally  enacted  (Stat.  28  Edw.  III., 
c.  3),  "That  no  man,  of  what  state  or  condition  soever  he  be, 
shall  be  put  out  of  his  lands,  or  tenements,  nor  taken,  nor 
imprisoned,  nor  indicted,  nor  put  to  death,  without  he  be 
brought  in  to  answer  by  due  process  of  law."  l    Among  the 
special  provisions  touching  particular  branches  of  judicial 
administration  may  be  cited  those  that  provide  that  the 
Amerce-        freeman  shall  only  be  amerced  according  to  his  fault,  saving 
to  him  the  means  of  maintenance;   and  in  like  manner  the 
merchant,  saving   to    him  his  merchandise;    and  also  the 
villein,  except  he  be  the  king's  villein,  saving  to  him  his 
wainage.     No  amercement  shall  be  assessed  in  any  case  but 
by  the  oaths  of  honest  and  lawful  men  of  the  neighbor- 
hood.2   Earls  and  barons  shall  be  amerced  according  to  the 
offense,  but  only  by  the  judgment  of  their  peers.3    As  a  pro- 
tection to  the  local  jurisdictions  it  was  provided  that  the  use 
Writ  of        of  the  writ  of  praecipe  should  be  limited.4    No  bailiff  shall 
henceforth  force  a  man  to  compurgation  or  ordeal  unless 
criminal       the  accusation  is  supported   by  credible  witnesses,5  —  the 

ins'  petty  jury  in  criminal  cases  not  then  being  in  existence. 

Charter  The  fact  must  never  for  a  moment  be  lost  sight  of  that 

pro^amme    the  great  act  of  the  "Parliament  of  Runnymede"  marks  the 

of  reform,      beginning,  not  the  end,  of  a  conflict.     It  embodies  not  a  final 

statement  of  concessions  to  the  nation  from  the  crown,  but 

rather  a  definite  programme  of  reform  which  the    nation 

resolves  to  persevere  in  until  it  is  finally  accepted  by  the 

crown  as  an  irrevocable  basis  of  government.     During  a 

1  For  Coke's  interpretation  of  "due  process  of  law,"  as  understood  in  the 
seventeenth  century,  see  Institutes,  46,  50. 

3  Art.  20. 

1  Art.  21.  Upon  the  subject  of  amercements,  see  Reeves,  History  of  English 
Law,  ii.  35-39. 

*  Art.  34.  For  the  history  of  that  writ,  see  Bigelow,  History  of  Procedure, 
pp.  77,  78,  83. 

«  Art.  38. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  299 

period  of  more  than  eighty  years  the  crown  resists  the  right 
of  the  nation  to  enter  into  the  full  enjoyment  of  the  rights 
and  liberties  the  charter  defines.     The  struggle  ends  at  last 
with  the  confirmation  of  the  charters  at  the  close  of  the 
reign  of  Edward  I.    The  first  stage  begins  with  the  death  of 
John  in  October,  1216,  when  the  crown  passed  to  his  son 
Henry  III.,  then  in  his  tenth  year.     For  the  first  time  since 
the  days  of  the  second  Aethelred,  the  crown  had  fallen  to 
a  child ; 1  for  the  first  time  since  the  Conquest  had  it  become  First 
necessary  for  the  representatives  of  the  nation  to  appoint  li^ce^ 
a   guardian    for   the    king.     The    baronage    chose    William  Con(iue8t- 
Marshall  as  "rector  regis  et  regni."  2    It  is  probable  that  to 
the  minority  of  Henry  can  be  traced  the  beginnings  of  the 
constitutional  doctrine  that  the  king  can  do  no  wrong,  and  King  can 
that  the  ministers  who  advise  him  are  responsible  to  the  w°^ 
assembled  representatives  of  the  nation  who  have  a  con- 
sultative voice  in  their  appointment.     In  the  duly  recorded 
proceedings  of  the  Parliament  of  1242,  which  survives  as  the 
earliest  authorized  report  of  a  parliamentary  debate,3  we  find 
the  assembly,   after  thoroughly  discussing  the   expediency 
of  a  foreign  war,  bold  enough  to  oppose  it  by  refusing  an  aid 
to  the  king  to  carry  it  on.     In  November,  1213,  just  after 
the  gathering  of  the  baronage  at  St.  Alban's  and  St.  Paul's, 
John  called  a  council  at  Oxford,  to  which  the  sheriffs  were 
directed  to  summon,  besides  the  armed  force  of  knights,  four  Represent- 
discreet  men  from  each  shire,4  to  share  in  the  king's  deep  shires  siuT 
speech  touching  the  affairs  of  his  kingdom,  to  form,  in  short,  towns- 
the  first  representative  Parliament.     This  is  the  first  writ  in 

1  Aethelred  was  elected  at  the  age  of  ten  years. 

2  Foedera,  i.  215 ;   M.  Paris,  p.  289.     Cf.  Gneist,   The  English  Parliament, 
p.  87. 

»  M.  Paris,  pp.  581,  582;   Select  Charters,  p.  368,  2d  ed. 

4  "Quatuor  descretos  homines  de  comitatu  tuo  illuc  venire  facias  ad  nos  ad 
eundem  terminum  ad  loquendum  nobiscum  de  negotiis  regni  nostri."  The 
summons  to  the  Oxford  council  may  be  found  in  the  Lords'  Report  (App.  1,  p.  2)  ; 
but  as  the  historians  forsake  us,  we  do  not  even  know  that  the  assembly  was 
ever  held. 


300  THE  SCIENCE  OF  JURISPRUDENCE 

which  the  "four  discreet  men"  of  the  county  appear  as  repre- 
sentatives; it  is  the  first  instance  of  the  summoning  of  the 
folk  moot  to  a  general  assembly  by  the  representative  machinery 
used  already  for  judicial  purposes.  To  Henry's  Parliament 
of  1254  the  chosen  knights  from  the  shires  are  summoned 
for  the  first  time  since  the  reign  of  John.1  In  order  to  con- 
clude the  arrangements  embraced  in  the  "Mise  of  Lewes," 
and  in  order  to  gain  a  broad  popular  basis  for  his  government, 
Simon  of  Montfort,  in  1265,  issued  the  writ  for  his  famous 
Parliament,  to  which  were  summoned  not  only  two  discreet 
knights  from  each  shire,  but  also,  for  the  first  time  in  English 
history,  two  representatives  from  the  cities  and  boroughs.2 
A  period  of  thirty  years  then  elapsed  before  the  experiment 
Model  was  repeated;  the  representatives  of  the  cities  and  towns 
were  not  again  summoned  until  Edward's  great  Parliament 
of  1295,3  in  which  the  estate  system  in  England  reached 
for  the  first  time  its  full  and  final  development.  That  Parlia- 
ment —  in  which  the  baronage  appear  in  person  and  the 
clergy  and  the  commons,  each  as  an  estate  o.f  the  realm, 
in  the  persons  of  their  chosen  representatives  —  completes 
the  transition  in  the  constitution  of  the  national  assembly 
from  a  feudal  council  to  a  council  of  estates.  The  time 
had  now  come  when  the  supreme  question,  involving  the 
right  of  the  nation  to  tax  itself,  —  a  right  which  the  barons  of 
Runnymede  had  clearly  defined,  but  which  the  struggles  of 
eighty  years  had  failed  to  confirm,  —  had  to  be  settled  once 

1  "It  seems  to  have  been  the  first  instance  appearing  on  any  record  now  ex- 
tant of  an  attempt  to  substitute  representatives  elected  by  bodies  of  men  for 
the  attendance  of  the  individuals  so  to  be  represented,  personally  or  by  their 
several  procurators  in  an  assembly  convened  for  the  purpose  of  obtaining  an 
aid."     Lords'  Report,  App.  1,  p.  13,  and  also  i.  94,  95. 

2  "Item    in    forma   praedicta  scribitur  civibus  Eboraci,  civibus  Lincolniae, 
et  ceteris  burgis  Angliae,  quod  mittant  in  forma  praedicta  duos  de  discretioribus, 
legalioribus  et  probioribus  tarn  civibus  quam  burgensibus. "     Lords'  Report, 
App.  1,  p.  33. 

3  "The  national  councils  of  1273  and  1283,  and  the  Parliament  of  Acton  Bur- 
nell,  contained  representatives  of  the  towns,  but  they  are  not  allowed  by  the 
constitutional  lawyers  the  full  name  of  parliaments."    Select  Charters,  p.  44. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  301 

and  for  all  between  the  nation  and  the  king.  When  in  1297 
Edward  I.  precipitated  the  conflict  by  attempting  to  tax 
the  nation  without  its  authority,  it  met  him  in  arms  under 
the  leadership  of  the  earls  Bigod  and  Bohun,  who  demanded 
the  confirmation  of  the  charters,  supplemented  by  certain 
additional  articles,  all  of  which  were  confirmed  by  the  king 
at  Ghent  on  November  5.1  The  new  articles,  thus  solemnly 
made  a  part  of  the  constitution,  not  only  denounced  all 
of  the  unauthorized  taxation,  but  they  also  provided  that, 
with  certain  exceptions,  no  taxes  should  henceforth  be  im- 
posed without  the  common  consent  of  the  realm  and  to  the 
common  profit  thereof.  The  king  was  made  to  promise  the 
clergy,  the  barons,  and  "all  the  commonalty  of  the  land, 
that  for  no  business  from  henceforth  will  we  take  such  manner 
of  aids,  tasks,  nor  prizes,  but  by  the  common  assent  of  the 
realm,  and  for  the  common  profit  thereof,  saving  the  ancient 
aids  and  prizes  due  and  accustomed."  2  And  in  order  to 
extend  the  limitation  to  indirect  as  well  as  direct  taxation, 
the  articles  further  provide  that  the  royal  right  of  taxing 
wool  shall  not  in  the  future  be  exercised  "without  their 
common  assent  and  good  will ;  saving  to  us  and  our  heirs  the 
customs  of  wools,  skins,  and  leather  granted  before  by  the 
commonalty  aforesaid."  3  Thus  by  the  reincorporation  into 
the  charters  of  these  vital  limitations  upon  the  royal  right 
of  taxation  which  for  more  than  eighty  years  had  been 

nght  to 

omitted  from  them,  the  prolonged  struggle  inaugurated  by  authorize 

taxation 

the  barons  of  Runnymede  ended  at  last  in  a  completely  recognized. 

1  Foedera,  i.  880.     The  charters  had  been  previously  confirmed  by  inspexirmis 
on  the  12th  of  October.     Ibid.  i.  879 ;  Statutes  of  the  Realm,  i.  114-119. 

2  Art.  vi. 

3  Art.  vii.     The  supplementary  articles  are  preserved  in  French  and  Latin, 
and  the  two  forms  differ  materially  from  each  other.     In  the  French  form  the 
articles  have  become  a  permanent  part  of  English  law.     Statutes  of  the  Realm,  i. 
124—125.     In  their  Latin  form,  preserved  by  Walter  of  Hemingburg  (ii.  152), 
the  articles  are  generally  known  as  the  statute  De  tallagio  non  concedendo.     As 
such  the  Latin  articles  were  referred  to  as  a  statute  in  the  preamble  to  the  Peti- 
tion of  Right,  and  were  decided  by  the  judges  in  1637  to  be  a  statute. 


302  THE  SCIENCE  OF  JURISPRUDENCE 

successful  consummation.  The  exclusive  right  of  the  national 
assembly  to  authorize  taxation  was  now  fully  and  finally  rec- 
ognized, save  so  far  as  that  right  was  limited  by  the  proviso, 
"saving  the  ancient  aids  and  prizes  due  and  accustomed."  l 
The  growth  11.  The  early  history  of  the  representative  system  in 
England  is  divided  into  two  epochs  :  first,  that  in  which  the 


Parliament.  reeve  ancj  four  men  appear  as  representatives  of  the  town- 
ship in  the  courts  of  the  hundred  and  the  shire;  second, 
that  in  which  the  representatives  of  the  shires  and  towns 
appear  in  national  parliaments.  Not  until  John's  writ  of 
1213,  directing  the  sheriffs  to  summon  to  a  council  at  Oxford 
four  discreet  men  from  each  shire,  was  an  attempt  made  in 
England  to  lift  the  representative  system,  which  had  existed 
immemorially  in  the  local  courts,  into  a  higher  sphere.  The 
Elected  representative  character  of  the  elected  knights,  as  well  as 
the  qualification  of  the  electors,  were  both  determined  by 
the  nature  of  the  only  court  or  assembly  in  which  the  sheriff 
could  constitutionally  execute  the  writ  under  whose  mandate 
the  knights  were  chosen.  The  sheriff  could  only  act  in  the 
county  court,  which  was  composed  of  the  whole  body  of 
freeholders,  and  he  could  only  act  in  accordance  with  those 
methods  of  procedure  with  which  the  shire  community  had 
The  been  immemorially  familiar.  The  Old-English  town  or 

cons'tu  borough  was  simply  a  subdivision  of  the  shire  "  in  which  men 
tution.  lived  closer  together  than  elsewhere;  it  was  simply  several 
townships  packed  tightly  together,  a  hundred  smaller  in 
extent  and  thicker  in  population  than  other  hundreds."  2 
While  the  early  history  of  the  borough  constitution  is  obscure, 
in  it  was  undoubtedly  embodied  the  system  originally  repre- 
sented by  the  free  township,  which  survived  as  the  basis  of 

1  By  that  provision  the  king  refused  "to  relinquish  his  old-exchequers-rights 
over  the  settlers  on  his  domain  lands,  and  over  the  tolls  traditionally  fixed  (cus- 
tuma  antiqua),  those,  namely,  on  wool,  hides,  and  leather."     Gneist,  English 
Parliament,  note  to  p.  136.      (Shee's  trans.) 

2  Freeman,  Norman  Conquest,  v.  312. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  303 

municipal  authority.    The  burgemot,  hustings,  or  law  court 
of  the  Old-English  town  was  usually  nothing  more  than  the 
hundred  court  in  a  slightly  different  form;  its  origin  was 
the  same,  and  its  procedure  substantially  the  same.1    Under 
the  writ  commanding  the  sheriff  to  return  members  from  the  Borough 
towns  he  could  extend  or  withhold  the  privilege  as  he  saw  ™w&** 
fit.2    While  the  real  election  of  borough  members  took  place 
in  the  boroughs  themselves,  the  formal  election  of  all  rep- 
resentatives took  place  in  the  county  court.3    At  the  time 
fixed  in  the  writs,  the  lords  spiritual  and  temporal,  together 
with  the  representatives  from  the  shires  and  towns,  were 
expected  to  appear  before  the  king  at  Westminster,  or  at 
any  other  place  he  had  seen  fit  to  designate.    Not  until  the 
reign  of   Edward  I.  did  Westminster  become   in  the  full  West- 
sense  of  the  term  the  seat  of  government.4    Then  it  was  thereat  Of 
that  the  dwelling  place  of  the  king  was  gradually  devoted  ^^n" 
to  the  uses  of  government:   the  chamber  became  a  council 
room;  the  banquet  hall  a  court  of  justice;  the  chapel  a  hall 
of  deliberation.    While  it  is  probable  that  the  three  estates 
deliberated  apart  from  the  beginning,  save  when  momentarily 
assembled  for  special  purposes,  not  until  the  reign  of  Edward  Parliament 

f  ...  .  divided  into 

III.  was  Parliament  definitely  divided  into  two  houses.5   In  two  houses. 

1  Essays  in  Anglo-Saxon  Law,  p.  22.  As  to  the  relation  of  guild  organization 
to  borough  organization,  see  Taylor,  The  Origin  and  Growth  of  the  English  Con- 
stitution, i.  458-460. 

1  See  Brady  on  Boroughs,  pp.  110-126 ;  Prynne,  3d  Register,  p.  231 ;  Lords' 
Report,  i.  375.  To  remedy  that  abuse  a  statute  was  passed  (5  Rich.  II.,  stat.  ii., 
c.  4)  which  imposed  a  fine  upon  the  sheriff  for  such  neglect.  Lords'  Report,  i. 
341. 

1  For  details,  see  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i. 
471-474. 

4  In  the  reign  of  Henry  III.,  who  rebuilt  the  Abbey  and  enlarged  the  palace, 
Westminster  finally  came  to  be  considered  as  the  customary  and  lawful  meeting 
place  of  Parliament. 

'  Not  until  1332  do  the  parliamentary  records  distinctly  mention  the 
fact  that  the  prelates,  the  lords  temporal,  and  the  knights  of  the  shire  de- 
liberated apart,  —  the  prelates  by  themselves,  the  earls  and  other  gentry  by 
themselves,  and  the  knights  from  the  counties  by  themselves.  Rot.  Parl.  ii.  66. 
In  the  next  year  we  learn  that  the  lords  and  the  proctors  sat  apart  by  them- 
selves, and  the  knights,  citizens,  and  burgesses  by  themselves.  Rot.  Parl.  ii.  69. 


THE  SCIENCE  OF  JUMSPRVBMKCS 


Otorgy 
rcfxiMxl  to 
b*  jointly 
MMBkbKxl. 


Sheldonian 

rt>u»pm-t 
of 


1352  the  common*)  wore  ordered  to  the  Chapter  House  of 

Westminster  Abbey; *  in  1877  Sir  T.  Hungerford  was  chosen 
speaker,  tho  first  to  whom  tho  title  and  position  were  definitely 
assigned; '  while  the  chuneellor,  not  necessarily  a  peer,  usually 
presided  in  the  House  of  Lords.  From  (he  h-ginning  the  clergy 
opposed  Edward's  idea  of  summoning  tho  representatives 
of  both  provinces  as  a  constituent  element  in  a  national 
council  as  developed  in  the  praemunientes  clause  contained 
in  the  writs  by  which  he  called  together  his  famous  Parlia- 
ment of  1295.  The  praemunientes  clause  itself  is  still  inserted 
in  the  writs,  but  it  has  been  a  dead  letter  since  the  fourteenth 
century."  The  clergy  of  the  two  provinces,  refusing  to  be 
jointly  assembled  as  an  estate  of  Parliament,  continued  to 
tax  themselves  in  their  provincial  convocations  until  after 
the  restoration  of  Charles  II.,  when,  in  1664,  by  a  mere 
verbal  agreement  between  Archbishop  Sheldon  and  Lord 
Chancellor  Clarendon,  an  arrangement  was  made  under 
which  the  clergy  waived  their  right  to  tax  themselves,  and 
agreed  to  be  assessed  by  the  laity  in  Parliament,4  gaining 
thereby  the  new  right  of  voting  at  the  election  of  the  members 
of  the  House  of  Commons  by  virtue  of  their  ecclesiastical 
benefices.5  The  refusal  of  the  representatives  of  the  clergy 
habitually  to  assemble  as  a  separate  estate  of  Parliament 
fixed  the  fact  that  the  national  legislature  of  England  should 
consist  of  two  houses  instead  of  three. 
It  is  all-important  to  ascertain  how  it  was  that  the  younger 

1  May,  Parliamentary  Practice,  p.  25,  citing  Elsynge,  p.  104.  Not  until  the 
reign  of  Edward  VI.  did  St.  Stephen's  Chapel  become  the  meeting  place  of  the 
commons. 

1  Rot.  Part.  ii.  374.     See  May,  Parliamentary  Practice,  p.  23  and  note. 

»  Select  Charters,  p.  38. 

•  Speaker  Onslow,  in  a  note  appended  to  Burnet,  History  of  his  Own  Times 
(Oxford  ed.,  iv.  308),  says,  "Gibson,  Bishop  of  London,  said  to  me  that  it  was 
the  greatest  alteration  in  the  constitution  ever  made  without  an  express  law. " 
Its  results  were  distinctly  recogniied  by  an  act  of  Parliament  passed  in  the  fol- 
lowing year  (16  and  17  Car.  II.,  c.  1). 

•  A  right  more  than  once  recognixed  by  statute.     E.g.  10  Anne,  c.  23,  and 
18  Geo.  II.,  c.  IS. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  805 

body  —  composed  of  representatives  from  the  shires  and  Early  par- 

towns  —  gradually  won  through  persistent   effort,  first   the 

right  to  participate  hi  taxation,  then  to  participate  in  legisla- 

tion,  then  to  impeach  the  ministers,  and  finally  to  participate 

in  the  control  of  the  royal  administration  and  in  the  de- 

position of  the  king  himself.    The  idea  that  the  nation  was 

in  some  form  consulted  even  during  the  Norman  period  is 

strengthened  by  two  records  which  belong  to  the  reign  of 

Henry  I.  :  in  one  the  king  describes  "  the  aid  which  my  barons 

gave  me";  *  in  the  other  —  the  charter  ordering  the  restora-  Taxation. 

tion  of  the  local  courts  —  he  speaks  of  summoning  the  county  N 

courts  whenever  his  royal  necessity  should  require  it.2    These 

two  documents  clearly  indicate  the  only  two  methods  through 

which  the  nation,  prior  to  the  appearance  hi  the  national 

council  of  the  representative  members,  could  be  consulted 

in  reference  to  taxation.    The  grants  made  by  the  lay  and 

spiritual  baronage  did  not  bind  absolutely  the  inferior  clergy, 

nor  the  main  body  of  the  nation  incorporated  for  government 

in  shires  and  towns.8    Before  contributions  could  be  drawn 

from  the  clergy  and  the  commons,  separate  negotiations 

had  first  to  be  conducted  with  the  archdeacons  of  each 

diocese  representing  the  spiritual  estate,  and  with  the  several 

county  courts  in  which  representatives  appeared  from  every 

portion  of  the  shire  community.    Such  negotiations  between 

the  crown  and  the  local  communities  were  carried  on  by 

a  detachment  of  justices  from  the  exchequer  during  their 

fiscal  circuits  of  the  shires.     There  can  be  no  doubt  that  the 

elected  knights  were  at  first  summoned  to  Parliament  for  the 


purpose  of  consenting  to  taxation  upon  the  part  of  the  shire  ^ 

1  "Auxilium  quod  barones  mihi  dederunt."     Chron.  Abrigd.  ii.  113. 

*  "  Ego  enim,  quando  voluero,  faciam  ea  satis  summonere  propter  mea  do- 
minica  necessaria.  ad  voluntatem  meam."    Foedera,  i.  12. 

*  In  the  grant  made  by  certain  bishops  and  barons  of  an  aid  "  pur  fille  marier" 
in  the  Parliament  of  1290  the  limitation  is  put,  in  so  far  as  in  them  lay.     The 
facts  are  thus  stated  in  the  writ  :  "Pro  se  et  communitate  totius  regni  quantum. 
in  ipnt  ett."    Rot.  Part.  i.  25. 

x 


306 


THE  SCIENCE  OF  JURISPRUDENCE 


Transition 
from  sepa- 
rate to 
general 
consent. 


Participa- 
tion in 
legislation. 


Supply  de- 
pendent on 
redress  of 
grievances. 


communities,  as  a  matter  of  fiscal  expediency  merely.  In- 
stead of  the  officers  of  the  exchequer  going  down  into  the 
shires  to  there  negotiate  separately  as  to  the  amount  each 
would  give,  it  was  deemed  more  expedient  for  each  shire  to 
send  representatives  to  the  national  council  armed  with 
full  power  to  express  its  corporate  assent  to  whatever  tax 
the  general  voice  might  there  impose.  The  same  motive,  at 
a  later  day,  brought  about  the  appearance  of  elected  repre- 
sentatives from  cities  and  towns.  Thus  was  completed  the 
transition  from  the  older  system  of  separate  consent  to 
taxation,  growing  out  of  feudal  ideas,  to  the  more  efficient 
and  comprehensive  one  of  general  consent  expressed  as  the 
corporate  act  of  the  nation  in  an  assembly  of  estates.1  How 
the  exclusive  right  of  Parliament  to  authorize  taxation  was 
finally  established  through  "Confirmalio  Cartarum,"  in  1297, 
has  been  explained  already.  The  right  of  the  commons 
to  participate  in  taxation  drew  after  it  the  right  to  partici- 
pate in  legislation.  As  early  as  the  reign  of  Henry  III.  the 
principle  was  openly  recognized  by  both  the  crown  and  the 
nation  that  concessions  in  favor  of  liberty  moving  from  the 
former  to  the  latter  were  legitimate  subjects  of  bargain  and 
sale.2  Representatives  of  the  commons,  when  regularly 
summoned  to  Parliament  as  a  matter  of  fiscal  expediency, 
were  quick  to  learn  how  to  insist  upon  the  redress  of  grievances 
in  return  for  a  money  grant.  When  such  a  grant  was  asked, 
it  became  the  custom  for  the  commons  to  put  forward  in  the 
form  of  a  petition  to  the  crown  such  grievances  as  required 
amendment  at  the  hands  of  the  king  and  his  council.3  To 

1  The  process  of  transition  belongs  to  the  years  1282-1295. 

3  In  the  confirmation  of  the  charters  in  1225  the  king  openly  admits  that 
"  pro  hac  autem  concessione  et  donatione  libertatum  istarum  et  aliarum  liberta- 
tum  contentarum  in  carta  notra  de  libertatibus  forestae,  .  .  .  omnes  de  regno 
nostro,  dederunt  nobis  quintain  decimam  partem  omnium  mobilium  suorum." 
Statutes,  Charters  of  Liberties,  pp.  22-25. 

*  As  early  as  1309  the  commons  granted  a  subsidy  "upon  this  condition, 
that  the  king  should  take  advice  and  grant  redress  upon  certain  articles  wherein 
they  are  aggrieved. "  For  the  articles,  eleven  in  number,  see  Prynne,  2d  Register, 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  307 

such  petitions  the  king  was  expected  to  make  his  answer 
during  the  session  of  Parliament,  and  out  of  the  petition  and 
answer  the  statute  was  coined  by  the  king's  advisers  and 
proclaimed  as  law.1  Not  until  after  the  eighteenth  year 2  of 
Edward  I.  was  the  right  of  the  commons  to  assent  to  legislation 
clearly  established.  Thereafter  the  ancient  formula  is  wid- 
ened, and  the  king  legislates  "by  the  assent  of  the  prelates, 
earls,  barons,  and  commonalty  of  the  realm."  3  In  order  to 
remedy  certain  grave  evils  and  uncertainties  that  grew  out  of  Abuses 
"  this  extracting  of  the  statute  out  of  the  petition  and  answer,  ^^ 
about  the  latter  end  of  Henry  VI.  and  beginning  of  Edward  Proced.u.re 

by  petition. 

IV.,  they  took  a  course  to  reduce  them,  even  in  the  first 
instance,  into  the  full  and  complete  form  of  acts  of  Parlia- 
ment." 4    When  that  departure  was  made  from  the  older 
form  of  initiation  by  petition,  when  bills  were  introduced  in 
the  form  of  statutes,  —  the  original  drafts  of  which  could 
only  be  altered  by  the  Parliament  itself,  —  the  transition 
from  royal  to  national  legislation,  which  began  with  the 
reorganization   of   the   feudal   council   as   a   representative 
assembly,  reached  its  full  and   final  consummation.     And  Difference 
here  reference  should  be  made  to  the  distinction  between  the  statut^and 
ordaining  power  of  the  king  in  council  and  the  enacting  power  an  ordi~ 
of  the  king  in  Parliament.5    At  what  exact  point  of  time 
the  Parliament,  after  drawing  to  itself  the  exclusive  right  to 
authorize  taxation  and  to  initiate  legislation,  secured  the  more 

p.  68.  In  1301  the  lords  had  told  the  king  that  if  the  demands  made  by  them 
in  behalf  of  the  whole  community  were  granted,  they  would  increase  their  gift 
from  a  twentieth  to  a  fifteenth.  Parl.  Writs,  i.  105. 

1  Hale,  History  of  the  Common  Law,  i.  16,  17. 

2  In  that  year  the  statute  Quia  emptores  was  enacted  by  the  long  and  barons, 
before  the  day  for  which  the  commons  were  summoned.     See  Lords'  Report, 
App.  1,  54. 

1  During  the  reign  of  Edward  III.  the  name  of  the  commons  is  rarely  omitted 
from  the  enacting  clause  of  a  statute.  See  Clifford,  History  of  Private  Bill  Legis- 
lation, i.  288. 

4  Hale,  History  of  the  Common  Law,  i.  18.  See  also  Ruffhead's  Statutes, 
Preface. 

•  See  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i.  496-497. 


308 


THE  SCIENCE  OF  JURISPRUDENCE 


Full  right 
of  delibera- 
tion. 


Right  to 
audit  ac- 
counts and 
appropriate 
supplies. 


Impeach- 
ment. 


comprehensive  right  to  deliberate  in  all  matters  of  national 
concern,  it  is  difficult  to  determine.  The  right  established 
by  the  baronage,  upon  the  accession  of  Henry  III.,  to  control 
the  royal  administration  during  the  minority  of  the  king,  was 
expanded  before  the  end  of  that  reign  into  a  general  right  of 
control  whenever  the  exigencies  of  the  state  might  require  it. 
But  the  full  right  of  deliberation  in  Parliament  did  not  pass 
to  the  representatives  of  the  shires  and  towns  until  the  reign 
of  Edward  III.,  whose  financial  necessities,  occasioned  by 
his  expensive  foreign  wars,  rendered  him  continually  de- 
pendent upon  their  bounty.  At  the  very  beginning  of 
Edward's  reign,  the  treaty  of  peace  with  Scotland  was  settled 
with  the  counsel  and  consent  of  the  prelates,  earls,  barons, 
and  commons ;  *  and,  as  soon  as  his  personal  rule  begins 
we  find  him,  in  1331,  consulting  Parliament  on  the  questions 
of  war  or  peace  with  France.2  As  incidents  to  the  substantive 
right  to  supervise  and  control  the  royal  administration,  thus 
fully  established  by  Parliament  during  the  reign  of  Edward 
III.,  should  be  noted  the  right  to  audit  the  public  accounts, 
and  to  appropriate  the  supplies  to  special  purposes.3  Before 
the  close  of  that  reign  the  doctrine  of  ministerial  responsibility, 
so  clearly  announced  in  the  memorable  proceedings  of  134 1,4 
assumed  a  more  serious  and  threatening  aspect  when  the 
commons  began  to  employ  for  the  first  time  the  new  consti- 
tutional weapon  of  impeachment.  Not  until  the  fiftieth  year 
of  Edward  III.  do  we  find,  in  a  series  of  proceedings  that 
occur  in  the  Good  Parliament,  a  clear  instance  of  a  parlia- 
mentary impeachment  in  the  sense  in  which  that  term  is 
now  understood.  The  proceedings  against  the  lords  Latimer 
and  Neville,  and  their  agents  and  accomplices,5  are  regarded 

1  Rot.  Parl.  ii.  442;  Foedera,  ii.  730.  »  Ibid.  ii.  61. 

*  The  right  of  appropriation  was  not  clearly  established  until  the  middle  of  the 
fourteenth  century.  It  was  firmly  reestablished  in  1666  by  the  Appropriation 
Act  of  Charles  II.  See  Hallam,  Constitutional  History,  ii.  356. 

«  Rot.  Parl.  ii.  128,  130.  •  Rot.  Parl.  ii.  323-326  and  329. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  309 

by  the  historians  as  the  earliest  instance  of  a  trial  by  the 
lords  upon  a  definite  accusation  made  by  the  commons  sitting 
as  a  grand  jury  of  the  whole  realm.  Through  the  establish- 
ment of  that  means  of  punishment  the  doctrine  of  ministerial 
responsibility  was  finally  placed  upon  a  definite  constitutional 
basis.  As  the  constitution  prescribed  no  mode,  short  of 
deposition,  through  which  the  king  could  be  made  personally 
amenable  for  any  act  of  maladministration,  it  became  neces- 
sary to  accept  the  legal  fiction  that  the  king  in  his  political  King  can  do 
capacity  could  do  no  wrong,  or  rather  that  in  the  conduct  of 
public  affairs  nothing  could  be  imputed  to  his  bad  intentions. 
Not  until  the  feudal  councils  of  the  Norman  and  Angevin 
kings  were  transformed  into  an  assembly  of  estates  did  the 
representatives  of  the  nation  dare  to  revive  that  highest  of  all 
rights  which  the  witan  had  occasionally  exercised  from  the 
earliest  times.  By  the  deposition  of  Edward  II.  the  Parlia-  Right  of 
ment,  for  the  first  time  since  the  Conquest,  asserted  the  right 
to  rid  the  nation  of  a  worthless  and  incompetent  king,  —  an 
event  followed,  after  an  interval  of  seventy-two  years,  by  the 
deposition  of  Richard  II.1  By  the  end  of  the  fourteenth  cen- 
tury the  Parliament  as  an  assembly  of  estates  had  won  for 
itself  the  possession  of  five  substantive  rights  embracing  all  Fivesub- 
the  higher  functions  of  government :  1.  The  exclusive  right  to 
authorize  both  direct  and  indirect  taxation;  and  as  an  inci- 
dent thereto  the  commons  claimed  the  right  to  make  the 
grant  of  supplies  dependent  upon  the  redress  of  grievances. 
2.  The  right  to  concur  in  the  enactment,  amendment,  and 
repeal  of  all  permanent  acts  of  national  legislation.  3.  The 
right  to  supervise  and  control  the  royal  administration;  and 
as  incidents  thereto  (a)  the  right  to  appropriate  the  supplies  to 
special  purposes,  (6)  and  to  audit  the  accounts  explaining  the 
methods  of  their  expenditure.  4.  The  right  to  impeach  and 
punish  the  ministers.  5.  And  finally  the  right  to  depose 

1  For  details,  see  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i. 
504-507. 


310 


THE  SCIENCE  OF  JURISPRUDENCE 


An  unde- 
fined resid- 
uum of 
judicial  and 
legislative 
power 
remains  to 
the  king  in 
council. 


Definition 
of  parlia- 
mentary 
privileges. 


House  of 
Lancaster. 


the  king  himself  and  to  vest  the  succession  in  another  mem- 
ber of  the  royal  house  more  competent  to  govern.  And  yet, 
when  a  summing  up  is  made  of  the  results  of  the  two  processes 
of  subtraction  through  which  the  bulk  of  the  judicial  business 
was  transferred  from  the  king  and  council  to  the  great  courts 
of  law  and  equity  on  the  one  hand,  and  the  virtual  control  of 
the  legislative,  taxative,  and  fiscal  business  of  the  kingdom 
to  the  Parliament  on  the  other,  the  important  fact  remains 
that  neither  process  was  exhaustive.  After  the  jurisdictions 
of  the  four  great  courts  at  Westminster  had  been  finally  es- 
tablished, an  undefined  reserve  of  judicial  power  still  remained 
to  the  king  in  council,  out  of  which  at  a  later  day  grew  the 
court  of  star  chamber  and  the  judicial  committee  of  the  privy 
council.  In  the  same  way,  and  to  about  the  same  extent,  the 
Parliament,  in  its  effort  to  draw  to  itself  the  exclusive  control 
of  taxation  and  legislation,  stopped  short  of  complete  victory. 
At  the  end  of  the  struggle  there  still  remained  in  the  hands  of 
the  king  in  council  an  undefined  reserve  of  legislative  power 
for  a  long  time  exercised  in  the  making  and  revoking  of  a  class 
of  temporary  enactments  known  as  ordinances.  By  the  end 
of  the  fourteenth  century  all  of  the  substantive  powers  of 
Parliament  had  reached  their  full  growth.  During  the  fif- 
teenth no  new  powers  are  added.  Nothing,  in  fact,  transpires 
in  the  history  of  Parliament  during  the  latter  period  more  im- 
portant than  the  settlement  of  its  principal  forms  of  procedure, 
and  the  assertion  and  definition  of  privileges  belonging  either 
to  Parliament  as  a  whole,  or  to  the  respective  houses  of  which 
it  is  composed,  or  to  its  individual  members. 

Through  the  exercise  of  the  ultimate  power  of  deposition 
and  election  Parliament  raised  the  House  of  Lancaster  to  the 
throne,  and  for  more  than  sixty  years  it  reigned  by  virtue  of 
a  parliamentary  title,  four  times  regulated  during  the  reign 
of  Henry  IV.1  To  the  ascendency  thus  gained  by  Parliament 


*Rot.  Parl.  m.  434,  525,  575,  576,  581. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  311 

over  the  monarchy,  in  the  hands  of  that  branch  of  the  royal 
house  which  may  be  regarded  as  its  own  creation,  must  be 
added  the  advantage  that  accrued  to  the  estates  by  reason  of 
the  continual  dependence  upon  them  of  the  ruling  house  for 
the  means  with  which  to  maintain  a  never-ending  foreign  war. 
As  early  as  1407  a  collision  occurs  which  "  seems  to  have  placed 
the  king  and  the  two  houses  of  Parliament  each  in  the  separate 
and  independent  situation  in  which  they  now  respectively 
stand."  1    The  outcome  was  the  definition  of  the  two  vital  TWO  vital 
principles  of  constitutional  law  that  declare,  first,  that  all  defined  in 
money  bills  shall  originate  in  the  House  of  Commons ;  second,  1407- 
that  the  king  shall  not  take  notice  of  matters  debated  in  Par- 
liament until  after  a  conclusion  has  been  reached  in  each 
house,  and  such  conclusion  brought  before  him  by  their  con- 
sent and  authority.2    After  the  accession  of  Henry  IV.  the 
estates  were  not  slow  to  reassert  the  principle  that  the  exer- 
cise of  the  royal  authority  should  be  limited  and  controlled  by 
the  action  of  the  council,  and  that  the  council  itself  should  be  council  to 
controlled  by  the  Parliament.     It  is  not  the  baronage,  how-  ' 

ever,  as  in  the  days  of  Henry  III.,  Edward  II.,  and  Richard 
II.,  who  take  the  initiative,  but  the  commons,  who  now  ap- 
pear as  the  more  aggressive  element,  demanding  that  the 
executive  government  shall  be  conducted  in  accordance  with 
the  views  of  the  national  assembly.  In  the  Parliament  of  1404 
the  commons  ventured  not  only  to  attack  the  organization  of 
the  royal  household,  but  also  to  request  the  king  to  appoint 
in  Parliament  the  servants  who  were  to  compose  his  great  and 
continual  council,  a  request  promptly  complied  with.3  Two 
years  later  the  commons  informed  the  king  that  their  motive  in 
making  the  grant  then  asked  was  not  only  their  fear  of  God 
and  their  love  for  him,  but  "  the  great  confidence  which  they 
had  in  the  lords  elected  and  ordained  to  be  of  the  continual 

1  Lords'  Report,  i.  359. 

2  Rot.  Part.  iii.  611 ;  Lords'  Report,  i.  358,  359 ;  Hallam,  M.A.  iii.  100-102. 

3  Rot.  Parl.  iii.  525,  526,  530. 


312 


THE  SCIENCE  OF  JURISPRUDENCE 


Regularly 
paid  and 
sworn 
councilors. 


House 
of  York. 


Collapse  of 
immature 
parlia- 
mentary 
system. 


council."  *  As  early  as  the  reign  of  Richard  II.  there  existed 
a  body  of  regularly  paid  and  sworn  councilors;  during  the 
reign  of  Henry  IV.  the  commons  pray  that  the  lords  of  the 
council  be  suitably  rewarded ; 2  and  during  the  minority  of 
Henry  VI.  their  pay  was  regulated  by  a  scale  guaranteeing  to 
each  member  a  fixed  sum  according  to  his  rank  and  dignity.3 
The  sworn  and  paid  councilors  who  thus  devoted  them- 
selves regularly  to  the  king's  business  began  to  be  known 
during  the  reign  of  Henry  VI.  as  the  "privy  council,"  —  the 
private  or  inner  circle  of  the  greater  body  generally  known  as 
the  "ordinary  council,"  or  simply  as  "the  council."  4 

The  hope,  apparently  well  grounded,  that  in  the  assembly 
of  estates  the  English  nation  had  at  last  found  a  defender, 
constant  enough  and  strong  enough  to  maintain  its  liberties 
as  against  the  monarchy  in  all  the  years  of  struggle  and  of 
change  that  were  yet  to  come,  ended  the  moment  the  im- 
mature parliament  system  was  called  upon  to  maintain  itself 
amid  the  vicissitudes  of  a  dynastic  struggle  between  two  fac- 
tions it  was  powerless  to  control.  By  the  fall  of  the  House  of 
Lancaster  the  first  period  of  parliamentary  growth  was  brought 
suddenly  to  a  close.  With  the  accession  of  the  House  of  York 
began  a  prolonged  period  of  reaction  that  reached  its  highest 
point  under  the  House  of  Tudor,  when  the  monarchy,  released 
from  the  fetters  and  safeguards  the  growth  of  the  parlia- 
mentary system  had  put  about  it,  resumed  in  substance,  if 
not  in  form,  the  exercise  of  that  system  of  royal  autocracy  it 
had  wielded  before  the  charters  were  won.  So  long  as  the 
elements  composing  the  estate  system  remained  intact,  so 
long  as  those  elements  acted  in  concert  against  the  monarchy 

1  Lards'  Report,  i.  368.  *  Rot.  Parl.  iii.  577. 

*  Proceedings  of  the  Privy  Council,  iii.,  Preface,  xix.  and  p.  154;  Rot.  Parl. 
iv.  374. 

4  Dicey,  The  Privy  Council,  pp.  44,  45.  The  same  author  says  (p.  43),  "Rea- 
sonable doubts  may  be  entertained  whether,  prior  to  Henry  VI.,  the  'Privy' 
and  'Ordinary'  council  were  in  any  sense  distinct  bodies."  As  to  the  rules 
and  regulations  imposed  upon  the  council  of  regency  during  that  reign,  see 
Stephens,  Comm.  ii  (8th  ed.),  460. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  313 

in  the  national  Parliament,  so  long  the  monarchy  lay  helpless 
in  the  hands  of  a  coalition  which  could  grant  or  withhold  sup- 
plies, which  could  dictate  its  policy  and  punish  its  ministers, 
and  which,  as  a  last  resort,  could  lay  its  hands  upon  the  throne 
and  depose  the  king  himself.  The  causes,  which  upon  the 
accession  of  Edward  IV.  led  to  the  re  establishment  of  the 
monarchy,  and  to  the  suspension  of  the  system  of  parliamen- 
tary life  that  had  overawed  it  for  more  than  a  century,  must 
be  found  in  the  processes  of  dissolution  and  decay  which  by 
that  time  had  undermined  not  only  the  corporate  vitality  of 
each  of  the  three  estates,  but  which  had  also  dissolved  that 
spirit  of  union  and  interdependence,  born  of  a  common  oppres- 
sion, that  in  the  earlier  days  had  bound  them  to  each  other. 
As  the  parliamentary  system  was  the  outcome  of  the  estate 
system,  the  collapse  of  the  one  naturally  followed  the  collapse 
of  the  other.1  In  reestablishing  the  monarchy,  Edward  was 
careful  to  emphasize  the  fact  that,  as  the  right  of  the  House  of 
Lancaster  had  rested  solely  on  parliamentary  election,  that  of 
the  House  of  York  rested  solely  upon  an  indefeasible  hereditary 
title,  which  he  claimed  the  Lancastrian  parliaments  had  no 
right  to  ignore,  no  power  to  set  aside.  Upon  that  assump-  risht- 
tion,  then  for  the  first  time  practically  asserted  in  English 
politics,  Edward  held  that  the  Lancastrian  kings  were  only 
de  facto  non  de  jure,2  —  that  their  judicial  acts  were  valid  and 
binding  only  so  far  as  he  and  his  parliaments  saw  fit  to  ratify 
them.8  The  financial  relief  the  ending  of  the  Hundred  Years' 
War  then  brought  to  the  monarchy  was  made  permanent  by 
a  policy  of  peace  which,  throughout  the  reigns  of  Edward  IV.  A  policy 
and  Henry  VIL,  remained  unbroken.  While  the  treasury 

1  For  a  more  complete  statement,  see  Taylor,  The  Origin  and  Growth  of  the 
English  Constitution,  i.  562-576. 

2  The  theory  was  that  Edward  IV.  succeeded  to  the  rights  of  Richard  II.,  and 
that  the  three  Lancastrian  kings  were  usurpers  :  "  Henry  usurpour,  late  called 
Kyng  Henry  the  sixt,"  is  the  language  of  the  act  of  1461.     See  Reeves,  History 
of  English  Law,  iv.  12,  n.,  Finlason  ed. 

*  Rot.  Parl.  v.  480  sq.     The  validity  of  laws  passed  during  the  Lancastrian 
reigns  was  not  questioned. 


314 


THE  SCIENCE  OF  JURISPRUDENCE 


Judicial 
powers  of 
council 
expanded. 


Edward 
converts  it 
into  an 
engine  of 
tyranny. 


was  thus  protected  from  the  drain  of  war  on  the  one  hand,  its 
coffers  were  filled  on  the  other  by  various  expedients  which, 
although  they  involved  the  agency  of  Parliament  in  the  first 
instance,1  did  not  involve  its  annual  assent  or  cooperation. 
While  Edward  was  thus  emancipating  the  monarchy  from  the 
financial  and  political  restraints  the  growth  of  the  parliamentary 
system  had  put  about  it,  he  was  also  careful  to  impart  a  fresh 
force  to  the  judicial  powers  of  the  council  which  the  growth  of 
the  law  courts  and  the  rise  of  the  equitable  jurisdiction  of 
the  chancellor  had  contracted  without  exhausting.  The  uni- 
formly weak  and  inefficient  system  of  internal  administration 
that  prevailed  throughout  the  Lancastrian  reigns  which,  even 
in  times  of  peace,  could  neither  preserve  order  nor  guarantee 
a  firm  administration  of  law,  almost  completely  gave  way 
during  the  protracted  confusion  of  the  civil  war.  The  rem- 
edy finally  proposed  for  evils  of  that  character  took  the  form  of 
statutes  authorizing  the  council  to  draw  before  it  all  persons 
and  all  causes  that  could  not  be  dealt  with  in  the  ordinary 
local  tribunals.  With  that  end  in  view  was  passed  the  Act 
of  31  Henry  VI.,  c.  2,  enlarging  the  powers  of  the  council, 
whose  judicial  authority  had,  to  judge  by  the  minutes  of 
Henry's  reign,  been  exerted  chiefly  in  cases  where,  from  the 
might  of  the  offenders,  the  courts  were  powerless  to  enforce 
justice.2  The  effort  thus  made  in  the  reign  of  Henry  VI.  to 
strengthen  the  hands  of  the  council,  in  order  to  make  it  the 
defender  of  order  against  anarchy,  was  followed  in  the  reign 
of  Edward  IV.,  by  an  attempt  to  convert  the  judicial  powers 
of  the  king  in  council  into  an  irresponsible  engine  of  tyranny.3 

1  In  the  flush  of  victory  Edward  obtained  a  sweeping  bill  of  attainder  (Rot. 
Parl.  v.  467-475),  and  four  years  later  a  grant  of  tunnage  and  poundage  and  a 
subsidy  on  wool  for  life  (Ibid.  v.  508). 

'  Dicey,  The  Privy  Council,  p.  72. 

*  By  the  patents  issued,  first  to  Tiptoft  and  then  to  Rivers,  the  jurisdiction 
of  the  high  constable  was  extended,  in  contempt  of  the  common  law,  to  cases 
of  high  treason.  As  to  the  terms  of  the  patent  to  Rivers,  August  24,  1467,  see 
Foedera,  xii.  581,  654.  The  enumerated  powers  had  been  originally  conferred 
on  Tiptoft  in  1462. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  315 

So  far  as  constitutional  history  is  concerned,  the  short  reign 
of  Richard  III.  is  a  mere  episode.    The  real  successor  of 
Edward  IV.,  in   a  constitutional  sense,  is  Henry  VII.     The 
despotic  policy  founded  by  Edward  was  continued  by  Henry  Real  suc- 
and  his  successors,  by  whom  it  was  systematized  and  en-  Edward  iv. 
forced  as  a  permanent  system  of  government.    The  vital  HenryVIL 
organ  of  such  policy  was  necessarily  the  council,  —  the  strong- 
hold of  the  monarchical  system. 

12.  From  the  accession  of  Henry  VII.  to  the  Revolution  of 
1640  the  history  of  the  council  is  the  history  of  the  monarchy.  The  Tudor 
During  that  period  of  a  century  and  a  half,  both  the  law 
courts  and  the  Parliament  crouched  at  the  feet  of  its  para- 
mount authority.  The  fact  has  been  heretofore  emphasized 
that  the  undefined  judicial  powers  of  the  king  in  council  were 
not  exhausted  by  the  growth  out  of  that  body  of  the  great 
courts  of  law  and  equity.  The  judicial  supremacy  of  the 
king  is  neither  limited  nor  fettered  by  the  new  rule ;  the  origi-  original 
nal  nucleus  of  light  remains  unimpaired.  After  the  organi-  ^"he'ldng 
zation  of  the  four  great  courts  at  Westminster,  the  council  incouncil- 
still  retained  a  residuary  jurisdiction,  both  civil  and  criminal, 
original  and  appellate.  "  It  seems,"  says  Sir  Francis  Palgrave, 
"  that  in  the  reign  of  Henry  III.  the  council  was  considered  as 
a  court  of  peers  within  the  terms  of  Magna  Carta ;  and  before 
which,  as  a  court  of  original  jurisdiction,  the  rights  of  tenants 
holding  in  capite,  or  by  barony,  were  to  be  discussed  or  de- 
cided; and  it  unquestionably  exercised  a  direct  jurisdiction 
over  all  other  of  the  king's  subjects."  l  The  tendency  of 
that  unlimited  and  undefined  jurisdiction  of  the  council, 
which  Bacon  says  "subsisted  by  the  ancient  common  laws 
of  the  realm,"  2  was  to  encroach  upon  the  ancient  inferior 
tribunals,  and  such  encroachment  led  to  the  enactment  of 
a  series  of  restraining  statutes  that  extend  from  the  reign  of 

1  Essay  on  the  Original  Authority  of  the  King's  Council,  p.  34. 
1  "History  of  Henry  VII.,"  Bacon,  Works,  i.  332. 


316 


THE  SCIENCE  OF  JURISPRUDENCE 


Jurisdiction 
first  nar- 


statute. 


Hen°vn 
c.  i.redefin- 

ing  powers 

of  council, 


Edward  I.  to  that  of  Henry  IV.1  With  the  reign  of  Henry  VI. 
a  new  legislative  policy  begins,  whose  aim  was  not  to  narrow 
^ne  crimmal  jurisdiction  of  the  council,  but  to  give  to  it  wider 
expansion.  When,  in  the  latter  part  of  that  reign,  the  ordi- 
nary administration  of  law  gave  way  under  the  strain  which 
the  turbulence  of  the  times  put  upon  it,  Parliament  authorized 
the  council  to  draw  before  it  all  persons  and  all  causes  that 
could  not  be  dealt  with  in  the  ordinary  tribunals.2  When 
the  turbulence,  the  lawlessness,  the  uncertainty  existing  at 
the  beginning  of  Henry  VII.  's  reign  are  taken  into  account; 
when  the  fact  is  remembered  that  the  evils  of  livery  and 
maintenance  were  still  in  full  vigor  to  hinder  local  adminis- 
tration of  existing  laws,  it  is  not  hard  to  understand  why 
the  extraordinary  criminal  jurisdiction  of  the  council,  which 
Edward  IV.  had  abused,  should  have  been  again  invoked,  as 
in  the  days  of  Henry  VI.,  in  the  interest  of  order  against  an- 
archy. That  such  was  the  motive  of  the  famous  act  of 
3  Henry  VII.,  c.  1,  is  clearly  revealed  by  its  terms.  In  the 
midst  of  all  the  doubt  and  difficulty  that  learned  refinement 
has  thrown  around  the  meaning  of  that  act,  it  is  safe  to  assume 
^at  ^  was  no^  mtended  to  create  a  new  tribunal,  or  even  to 
ves^  jn  the  council  a  fresh  jurisdiction.3  The  soundest  critics 

.  .  . 

agree  in  the  conclusion  that  it  was  only  intended  to  invigorate 

1  A  series  of  petitions  begin  as  early  as  1351  against  the  judicial  usurpations 
of  the  council.  See  Rot.  Parl.  ii.  228,  339,  295.  In  1390  the  commons  petitioned 
that  no  one  should  be  summoned  before  the  chancellor  or  the  council  by  the 
writ  quibusdam  de  causis  to  answer  in  any  case  in  which  the  common  law  gave 
a  remedy.  Rot.  Parl.  iii.  267. 

3  See  Act  of  -31  Hen.  VI.,  c.  2,  enlarging  the  powers  of  the  council  so  that  it 
might  deal  with  those  great  offenders  who  overawed  the  ordinary  tribunals. 
Dicey,  The  Privy  Council,  p.  72. 

*  For  the  older  literature  as  to  the  history  of  the  star  chamber,  see  Hudson, 
"Treatise  on  the  Star  Chamber,"  in  Collectanea  Juridica,  vol.  ii.  ;  Sir  Thomas 
Smith,  Commonwealth  of  England,  bk.  iii.,  cap.  i.  ;  "History  of  Henry  VII.," 
Bacon,  Works,  i.  334;  Hale,  Jurisdiction  of  the  House  of  Lords,  c.  v.  For  the 
modern  literature,  see  Reeves,  History  of  English  Law,  iv.  205-212  ;  Palgrave, 
Essay  on  the  Original  Authority  of  the  King's  Council;  Sir  J.  F.  Stephen,  History 
of  the  Criminal  Law  of  England,  i.  166-184;  Dicey,  The  Privy  Council,  pp.  94- 
115;  Gneist,  History  of  the  English  Constitution,  pp.  504-513. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  317 

and  emphasize  by  parliamentary  sanction  the  ancient  pre- 
rogative criminal  jurisdiction  of  the  crown,  which,  as  early 
as  the  reign  of  Edward  III.,  we  hear  of  the  "chancellor,  treas- 
urer, justices,  and  others,  exercising  in  the  chambre  des  estoiks 
at  Westminster."    The  intention  of   Henry's   statute  must 
have  been  simply  to  revivify  and  define  this  ancient  juris- 
diction, and  at  the  same  time  to  commit  its  exercise  as  a  special  Vested  in 
duty  to  a  committee  of  the  council  composed  of  those  specially  committee, 
named  in  the  act.     Of  the  special  tribunal  thus  organized 
Bacon  writes,  "And  as  the  chancery  has  the  praetorian  power 
for  equity,  so  the  star  chamber  has  the  censorian  power  for 
offenses  under  the  degree  of  capital."  l    As  the  elastic  juris- 
diction of  the  chancellor  grew  and  widened  in  civil  matters 
so  as  to  meet  the  ever  expanding  wants  of  litigants,  so  the 
extraordinary  jurisdiction  of  the  council  in  criminal  matters 
so  widened  as  to  meet  the  endless  demands  of  despotic  author- 
ity.   The  powers  of  the  special  committee  or  court,  organized  Powers  of 
under  the  act  of  3  Henry  VII.,  c.  1,  after  maintaining  a  sep-  committee 
arate  existence  for  about  fifty  vears,  fell  back  towards  the  revest.edin 

council. 

close  of  the  reign  of  Henry  VIII.  to  the  general  body  of  the 
council.  The  act  of  31  Henry  VIII.,  which  gave  to  the  royal 
proclamations  the  force  of  law,  provided  that  offenders  against 
them  might  be  punished  by  the  ordinary  members  of  the 
council,  together  with  certain  bishops  and  judges,"  in  the  star 
chamber  or  elsewhere."  While  the  "censorian"  powers  of 
the  special  committee  were  thus  falling  back  to  the  main 
body  of  the  council  itself,  those  powers  were  themselves 
expanding  far  beyond  the  statutory  limits  originally  assigned 
to  them.  When  it  became  convenient  for  the  Tudor  despotism 
to  extend  the  criminal  jurisdiction  of  the  council  over  offenses 
not  named  in  the  act  of  3  Henry  VII.,  c.  1,  cognizance  of  them 
was  simply  assumed,  and  those  who  presumed  to  contend 
that  jurisdiction  was  limited  by  the  act  were  not  only  ignored, 

1  "History  of  Henry  VII.,"  Bacon,  Works,  i.  333. 


318 


THE  SCIENCE  OF  JURISPRUDENCE 


Court  in  its 
final  form. 


Its 
procedure. 


Henry  VII. 
and  his 
threefold 
claim  of 
title. 


but  sharply  reprimanded.1  Thus  it  appears  that  the  court 
of  star  chamber  as  finally  organized  was  nothing  more  nor 
less  than  the  whole  council  sitting  judicially;  and  its  juris- 
diction as  then  exercised  was  practically  unlimited.  It  is 
now  no  question  of  what  it  had  a  right  to  do,  but  of  what  it 
did.  In  its  procedure  it  disregarded  the  common  law,  it 
dispensed  with  trial  by  jury,  it  accepted  report  in  lieu  of  the 
testimony  of  witnesses,  it  employed  torture,  and  it  could 
pronounce  any  judgment  short  of  that  of  death.2  Such  an 
institution,  although  it  may  have  been  employed  in  the  early 
Tudor  days  for  the  suppression  of  anarchy  and  the  main- 
tenance of  order,  finally  proved  itself  to  be  equally  efficient 
as  an  engine  of  tyranny,  which  forced  alike  the  peasant  and 
the  noble,  the  law  courts  and  the  Parliament,  to  crouch  at 
the  feet  of  its  irresistible  authority. 

By  his  victory  at  Bosworth,  Henry  VII.  was  brought  face 
to  face  with  the  double  task  of  founding  a  dynasty  and  of 
maturing  and  expanding  the  new  monarchical  system  Ed- 
ward IV.  had  inaugurated.  Bacon,  in  his  history,  tells  us 
that  "there  were  fallen  to  his  lot,  and  concurrent  in  his 
person,  three  several  titles  to  the  imperial  crown.  The  first, 
the  title  of  the  Lady  Elizabeth,  with  whom,  by  precedent 
pact  with  the  party  that  brought  him  in,  he  was  to  marry. 
The  second,  the  ancient  and  long-disputed  title  both  by  plea 
and  arms,  of  the  House  of  Lancaster,  to  which  he  was  inheritor 
in  his  own  person.  The  third,  the  title  of  the  sword  of  con- 
quest, for  that  he  came  in  by  victory  of  battle,  and  that  the 
king  in  possession  was  slain  in  the  field."  3  In  the  midst 

1  See  Lord  Chancellor  Egerton's  statement  as  to  reprimands   actually  ad- 
ministered when  "Mr.  Sargeant  Lovelace  put  his  hand  to  a  demurrer  in  this 
court  for  that  the  matter  of  the  bill  contained  other  matters  than  were  men- 
tioned in  the  statute  3  Hen.  VII.,  and  Mr.  Plowden,  that  great  lawyer,  put  his 
hand  thereto  first,  whereupon  Mr.  Lovelace  easily  followed."     Hudson   Collec- 
tanea Juridica,  ii.  80. 

2  While  its  decrees  seem  to  have  been  lost,  the  pleadings  in  the  star  chamber 
are  in  the  Record  Office. 

»  "History  of  Henry  VII.,"  Bacon,  Works,  i.  315. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  319 

of  the  embarrassment  that  surrounded  each  of  his  claims, 
Henry  assumed  the  crown,  and,  as  soon  as  his  coronation  was 
over,  he  summoned  a  Parliament  to  which  he  boldly  announced 
that  "  he  had  come  to  the  throne  by  just  title  of  inheritance,  His  decia- 
and  by  the  sure  judgment  of  God,  who  had  given  him  victory  parliament, 
over  his  enemies  in  the  field."  To  allay  such  apprehension 
as  the  last  statement  was  likely  to  excite,  he  added  that  all 
might  "  enjoy  his  rights  and  hereditaments,  with  the  exception 
of  such  persons  as  in  the  present  Parliament  should  be  punished 
for  their  offenses  against  his  royal  majesty."  1  At  this  stage 
of  the  proceedings  a  serious  question  arose  which  led  to  the 
declaration  of  an  important  principle  of  constitutional  law. 
In  the  preceding  reign  not  only  had  Henry  been  attainted, 
but  more  than  half  of  the  peers  now  summoned,  as  well  as 
a  large  number  of  those  who  composed  the  lower  house. 
The  suggestion  was  made  that  the  attainder  of  the  king  could 
not  be  reversed  in  the  usual  manner,  because  while  he  was 
under  the  ban  he  could  not  lawfully  exercise  any  of  the  func- 
tions of  royalty.  In  order  to  remove  that  difficulty  from  the 
path  of  legislation,  the  judges  were  assembled  by  Hussey, 
Chief  Justice,  who  induced  them  to  agree  that  "  the  descent  Descent  of 
of  the  crown  of  itself  takes  away  all  defects  and  disabilities  moves  all 
arising  from  attainder,  and  therefore  that  the  act  of  attainder 
must  be  considered  as  already  virtually  reversed."  2  It  was 
at  the  same  time  declared,  however,  that  attainders  of  subjects 
could  be  removed  only  by  act  of  Parliament.3  When  all  legal 
incapacities  were  thus  eliminated,  Parliament  simply  declared, 
as  to  the  new  king's  title,  that  "  the  inheritance  of  the  crown 
should  be,  rest,  and  remain,  and  abide  in  the  most  royal  per-  to  title- 

1  Rot.  Parl.  vi.  268.     See  also  Lingard,  iii.  298. 

8  Year  Book,  Tenn.  Mich.,  1  Hen.  VII.  5.  "But  nevertheless,  for  honour's 
sake,  it  was  ordained  by  parliament,  that  all  records  wherein  there  was  any 
memory  or  mention  of  the  King's  attainder,  should  be  defaced,  cancelled,  and 
taken  off  the  file."  Bacon,  Works,  i.  318. 

1  As  to  the  whole  transaction,  see  Hussey 's  life  in  Campbell,  Lives  of  the  Chief 
Justices,  i.  162. 


320 


THE  SCIENCE  OF  JURISPRUDENCE 


Security  of 
subject 
under  king 
de  facto. 


New 
nobility. 


Henry  VII. 

and 

Parliament. 


His 

financial 

policy. 


son  of  the  then  sovereign  lord,  King  Henry  VII.,  and  the  heirs 
of  his  body  lawfully  coming  perpetually  with  the  grace  of 
God  so  to  endure,  and  in  none  other."  *  The  act  of  2  Henry 
VII.,  c.  1,  provides  that  "no  person  attending  upon  the  king 
and  sovereign  lord  of  this  land  for  the  time  being,  and  doing 
him  true  and  faithful  service,  shall  be  convicted  of  high  trea- 
son by  act  of  Parliament  or  other  process,  nor  suffer  any  for- 
feiture or  punishment;  but  that  every  act  made  contrary 
to  his  statutes  shall  be  void  and  of  no  effect."  2  The  decay 
of  the  baronage,  which  had  been  gradually  brought  about  by 
the  wreck  of  feudalism,  the  extinction  of  the  greater  families, 
and  the  breaking  up  of  great  estates,  Henry  showed  no  dis- 
position to  check  or  repair.  His  coronation  was  attended 
by  only  three  creations,  and  the  new  nobility  that  grew  up 
under  him  and  his  successors  was  composed  of  new  men, 
creatures  of  royal  favor,  who  assumed  the  role  rather  of  cour- 
tiers than  of  parliamentary  barons.  Such  of  the  older  nobles 
as  the  Percies,  the  Nevilles,  and  the  Howards  were  held  in 
check  by  the  advancement  of  men  like  Morton,  Fox,  Wolsey, 
Cromwell,  Cecil,  Bacon,  and  Walsingham.3 

The  policy  of  Henry  VII.  toward  Parliament  as  a  whole 
was  simply  a  repetition  of  that  of  Edward  IV.  Like  Edward, 
Henry  was  willing  to  summon  Parliament  only  on  rare  and 
critical  occasions,  when  it  was  necessary  to  draw  strength 
from  its  authority  or  revenue  from  its  bounty.  Like  Edward, 
Henry  looked  to  Parliament  for  a  recognition  of  his  title,  for 
a  grant  of  tonnage  and  poundage  for  life,  and  for  bills  of 
attainder  from  which  he  could  enrich  himself  from  the  spoils 
of  his  enemies.  Strengthened  by  such  a  beginning,  it  seemed 
to  be  the  prime  object  of  his  policy  to  render  himself  inde- 

1  Rot.  Parl.  vi.  270;   1  Hen.  VII.,  c.  1. 

2  As  to  the  inability  of  this  act  to  bind  future  Parliaments,  Bacon  says,  "For 
a  supreme  and  absolute  power  cannot  conclude  itself,  neither  can  that  which  is 
in  nature  revocable  be  made  fixed."     Works,  i.  256. 

*  The  Tudors,  with  scarcely  an  exception,  restricted  their  creations  to  the  old 
knightly  families. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  321 

pendent  of  Parliament  by  reducing  his  expenditures  to  the 
smallest  possible  amount  on  the  one  hand,  and  by  increasing 
his  revenues  on  the  other,  by  the  enforcement  of  all  kinds 
of  obsolete  feudal  forfeitures  and  amercements,  and  by  a  re- 
vival of  that  odious  form  of  royal  taxation  known  as  benevo- 
lences.1 During  the  twenty-four  years  of  his  rule,  Henry  Benevo- 
summoned  Parliament  only  seven  times,  and  nearly  all  those 
meetings  were  called  in  the  first  half  of  his  reign.  During  his 
last  thirteen  years,  Parliament  was  summoned  only  once.2 

Just  as  the  long  night  of  political  reaction,  coextensive  The 
with  the  supremacy  of  the  York  and  Tudor  monarchy,  began  to  Renaissance, 
settle  down  like  a  blight  upon  the  growth  of  the  English  con- 
stitution, the  dawn  of  the  Renaissance  began  to  break  upon 
the  life  of  the  English  people.  While  Edward  IV.  and  Henry 
VII.  were  fastening  on  the  island  kingdom  that  system  of 
absolutism  which  had  begun  to  prevail  throughout  the  con- 
tinental nations,  the  main  body  of  the  people  were  beginning 
to  be  stirred  by  the  spirit  of  that  new  and  marvelous  era  of 
national  awakening  generally  known  as  the  English  Renais- 
sance, —  a  term  that  must  not  be  confined  to  the  mere  revival 
of  learning,  but  so  expanded  as  to  embrace  the  entire  process 
of  mental  and  material  development  that  brought  to  the  Eng- 
lish people  its  new  conceptions  of  philosophy  and  religion, 
its  new  understanding  of  government  and  law,  its  reawakened 
interest  in  the  arts  and  sciences,  its  new-born  activity  in  com- 
merce and  manufacture,  as  well  as  that  spirit  of  discovery  and 
adventure  that  widened  its  destiny  through  conquest  and  colo- 
nization in  another  hemisphere.  During  the  period  in  which 

1  In  1490  and  in  1497,  when  general  subsidies  (one  of  a  novel  character) 
were  levied  upon  the  nation,  serious  insurrections  occurred;  the  first  in  the 
north  and  last  in  Cornwall,  which  was  suppressed  only  after  great  bloodshed. 
See  Lingard,  iii.  314,  324.  In  order  to  remove  the  irritation  produced  by  the 
pressure  of  general  taxation,  Henry  seems  to  have  resorted,  with  the  aid  of 
"  Morton's  fork, "  to  the  system  of  benevolences  under  which  the  burden  of  taxa- 
tion fell  mainly  upon  the  wealthier  classes.  See  Dowell,  History  of  Taxation,  i. 
127-129,  200. 

3  The  last  Parliament  called  was  that  of  1504. 

T 


322 


THE  SCIENCE  OF  JURISPRUDENCE 


Overthrow 
of  parlia- 
mentary 
institutions 
on  the 
Continent. 


Character 
of  the 
struggle  in 
England. 


Older  forms 
of  constitu- 
tional life 
never  abol- 
ished. 


Henry  VIII. 
and  the 
break  with 
Rome. 


Edward  IV.  was  overawing  the  law  courts  and  trampling 
upon  the  Parliament,  the  shining  seed  points  of  light,  out  of 
which  the  new  life  was  to  spring,  were  being  sown  amid  the 
embers  of  the  dying  medievalism.  The  wave  of  reaction 
that  broke  upon  England  at  Edward's  accession  was  a  part 
of  the  general  tendency  that  characterized  the  politics  of  the 
sixteenth  century.  With  the  close  of  the  Middle  Ages,  every 
effort  that  had  been  made  in  the  direction  of  representative 
government  upon  the  continent  of  Europe  came  to  an  end. 
Then  it  was  that  the  free  constitutions  of  Castile  and  Aragon 
were  overthrown  by  Charles  V.  and  Philip  II. ;  then  it  was  that 
the  States-General  of  France  met  for  the  last  time  (1614) 
before  their  final  meeting  (1789)  upon  the  eve  of  the  French 
Revolution.  With  the  accession  of  the  House  of  York  the 
English  national  assembly  fairly  began  that  prolonged  strug- 
gle with  the  growing  despotism  of  the  monarchical  system 
which  upon  the  Continent  proved  strong  enough  either  to 
sweep  away  or  to  reduce  to  empty  forms  all  parliamentary 
institutions  for  nearly  two  centuries.  In  England,  whose 
insular  position  obviated  the  necessity  for  standing  armies,1 
the  monarchy,  armed  only  with  moral  force,  never  attempted 
to  end  the  existence  of  the  Parliament.  The  new  system  of 
absolutism  reestablished  by  the  House  of  York  and  perpetu- 
ated by  that  of  Tudor  did  not  aim  at  the  abolition  of  the 
older  forms  of  constitutional  life  by  which  the  monarchy  had 
been  fettered  for  more  than  a  century;  it  simply  strove  to 
extinguish  forever  the  vital  spirit  which,  in  the  better  days, 
had  made  them  actual  restraints  upon  the  royal  authority. 

13.  Great  as  was  the  progress  made  by  the  New  Learning 
during  the  reign  of  Henry  VII.,  under  the  lead  of  Grocyn,  Colet, 
More,  and  Erasmus,  the  group  of  scholars  of  which  they  were 
the  central  lights  remained  a  small  one  until  after  the  accession 

1  No  such  thing  as  a  standing  army  existed  until  after  the  Commonwealth 
and  not  until  after  the  French  Revolution  and  the  Peninsular  War  did  the  nation 
become  reconciled  to  its  existence. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  323 

of  Henry  VIII.    Then  it  was  that  the  circle  widened;   then  it 
was  that  the  "new  order"  began  in  earnest;  then  it  was  that 
England,  thus  ushered  into  the  new  era,  definitely  entered 
upon  a  career  of  intellectual  development  abreast  with  the 
foremost  of  the  continental  nations.    At  the  dawn  of  that 
era,  England  was  still  a  member  of  that  vast  and  shadowy 
Christian  monarchy  known   as   the   Holy  Roman  Empire, 
whose  sway  was  supposed  to  be  universal.    The  chiefs  of  Holy 
that  comprehensive  society  were   the  Roman  emperor  and  Empire, 
the  Roman  pontiff,  —  the  one  standing  at  its  head  in  its  tem- 
poral character  as  an  empire,  the  other  standing  at  its  head 
in  its  spiritual  character  as  a  church.1    The  medieval  claim 
of  papal  supremacy  has  thus  been  restated  by  a  great  English 
cardinal:    "The  supreme  civil  power  of  Christendom  was 
dependent  on  the  supreme  spiritual  authority.    The  pontiffs 
created  the  empire  of  the  west;  they  conferred  the  imperial 
dignity  by  consecration;  they  were  the  ultimate  judges  of  the 
emperor's  acts,  with  power  of  deprivation  and  deposition." 3 
This  supremacy,  which  the  pope  claimed  not  only  over  the 
emperor,  but  over  all  other  Christian  princes,  naturally  as- 
sumed a  feudal  shape.    The  theory  was  that  all  Christian  Theory  of 
princes  stood  to  the  Roman  pontiff  as  great  vassals  to  a  supreme  empire, 
lord  or  suzerain,  and  as  such  supreme  lord  the  pope  claimed 
the  right  to  enforce  the  duties  due  to  him  from  his  feudal 
subordinates  through  an  ascending  scale  of  penalties  culmi- 
nating in  the  absolution  of  the  subject  from  the  bonds  of 
allegiance,  and  in  the  deposition  of  the  sovereign  himself. 
Such  were  the  claims  of  the  papal  power,  and  such  its  re- 
sources when  John  entered  the  lists  against  Innocent  III.; 
such  were  its  claims  and  resources  when  Henry  VIII.  entered 
the  lists  against  Clement  VII.    By  the  middle  of  the  twelfth 

1  See  Bryce,  The  Holy  Roman  Empire,  and  the  brilliant  review  of  that  work 
by  Edward  A.  Freeman,  in  his  Select  Historical  Essays. 

*  Monograph  by  Cardinal  Manning,  entitled  The  Pope  and  Magna  Carta,  pub- 
lished first  in  England  and  then  reprinted  in  Baltimore  in  1885. 


324 


THE  SCIENCE  OF  JURISPRUDENCE 


System  of 


Cromweii's 
secession. 


century  a  comprehensive  system  of  appeals  had  been  built  up 
from  the  bishops'  courts  to  the  pope,  and  in  that  way  the 
whole  of  Western  Europe  was  drawn  within  the  jurisdiction 
of  one  tribunal  of  last  resort,  the  Roman  curia.1  In  a  matri- 
monial cause  involving  the  validity  of  a  royal  marriage,  when 
the  result  might  affect  the  legitimacy  of  the  issue,  and  in  that 
way  the  peace  of  the  nation,  the  pontiff  claimed  that  it  was 
a  matter  of  the  last  importance  to  have  all  questions  passed 
upon  by  the  one  authority  whose  judgment  was  entitled,  in 
theory  at  least,  to  universal  acceptance.  Wolsey  attempted 
to  solve  the  problems  involved  in  the  divorce  of  Henry  VIII. 
from  Catherine  of  Aragon  by  virtue  of  his  legatine  authority, 
and  his  failure2  in  May,  1527,  to  secure  a  favorable  issue, 
resulted  in  his  overthrow  in  1529,3  —  an  event  that  marks 
the  termination  of  the  rule  of  the  great  ecclesiastics  who, 
since  the  accession  of  Henry  VII.,  had  dominated  at  the  coun- 
cil  board.  Wolsey's  successor  was  Thomas  Cromwell,  who 
urged  the  king  to  solve  the  problem  of  the  divorce  by  dis- 
avowing the  papal  supremacy,  and  by  declaring  himself  the 
head  of  the  Church  of  England,4  a  position  which  would  leave 
him  free  to  apply  for  relief  to  his  own  ecclesiastical  tribunals. 
In  the  presence  of  such  a  proposal  even  Henry  faltered.  He 
had  no  personal  sympathy  whatever  with  the  new  movement 
that  threatened  to  wreck  the  spiritual  unity  of  the  medieval 
empire,  and  he  had  no  mind  to  break  with  the  papacy  until 

1  See  above,  p.  128. 

2  The  results  of  the  victory  of  Pavia  in  1525  had  placed  the  pope  at  the  mercy 
of  Catherine's  all-powerful  nephew,  the  emperor,  —  the  sacking  of  Rome  in 
May,  1527,  had  left  him  a  prisoner  in  the  Castle  of  St.  Angelo.     Pallavicino, 
pp.  242-246. 

8  In  October,  1529,  the  attorney-general  filed  two  bills  against  him,  charging 
him  with  having  violated,  as  legate,  the  Statute  of  Praemunire  (16th  of  Richard 
II.).  He  pleaded  guilty  and  threw  himself  on  the  king's  mercy.  Cavendish, 
p.  250. 

*  Pole  (Apologia,  pp.  121-123)  gives  the  account  of  what  occurred  upon  the 
authority  of  Cromwell  and  others.  Cromwell  is  reported  to  have  said  to  Henry 
in  conclusion,  "Vindices  ergo  quod  est  proprium  Regii  nominis,  ut  sis  caput 
in  tuo  regno,  et  solum  caput."  In  Baily,  Life  of  Bishop  Fisher,  p.  89,  the 
suggestion  as  to  the  new  form  of  the  king's  title  is  attributed  to  Cranmer. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  325 

he  had  exhausted  every  possible  means  to  prevent  a  disputed 
succession  by  obtaining  a  divorce  from  the  only  tribunal 
whose  decree  could  command  anything  like  general  acceptance. 
Not  until  Henry's  policy  of  menace  and  coercion  had  failed 
were  Cromwell's  decisive  measures  permitted  to  begin.  That 
policy  was  inaugurated  in  the  Reformation  Parliament  that  Reforma- 
met  on  the  3d  of  November,  1529,  and  was  dissolved  on  April 
14,  1536.  Through  the  acts  of  that  Parliament  it  was  that 
the  papal  overlordship  was  finally  overthrown,  the  royal 
supremacy  fully  established,  and  the  clergy  reduced  to  a 
state  of  abject  submission  at  the  feet  of  the  monarchy.  The 
first  session  opened  with  an  attack  on  the  clergy,  in  the  form  Summary 
of  a  petition  from  the  commons  to  the  king  in  which  were  of  its  six 
summarized  all  grievances  and  abuses  that  could  then  be  sesslons- 
charged  upon  the  administrators  of  the  Anglican  church; 
in  the  second,  Henry  drew  nearer  to  Cromwell's  policy  by 
forcing  convocation  to  admit  the  king's  headship  of  the  church, 
with  a  qualification;  in  the  third,  a  conditional  statute  was 
passed  forbidding  the  payment  of  annates,  and  authorizing 
the  consecrating  of  bishops  without  papal  authority,  and 
an  absolute  one  forbidding  convocation  to  legislate  without 
royal  license ;  in  the  fourth,  appeals  to  Rome  in  certain  cases, 
including  marriage  and  divorce,  were  forbidden,  it  being 
provided  that  in  all  such  cases  whether  affecting  the  king  or 
his  subjects  the  hearing  should  be  had  in  the  king's  courts, 
temporal  and  spiritual,  and  not  elsewhere;  and  furthermore 
that  the  course  of  appeal  should  be  from  the  archdeacon  to 
the  bishop,  and  from  the  bishop  to  the  archbishop  of  his  prov- 
ince; and  in  any  case  touching  the  king  or  his  successors, 
the  appeal  should  be  to  the  upper  house  of  convocation;  in 
the  fifth,  all  appeals  to  Rome  and  the  payment  of  Peter's 
pence  were  forbidden,  the  statute  of  annates  being  reenacted 
with  a  provision  authorizing  the  nomination  of  bishops  by 
congi  d'elire,  the  method  employed  to  the  present  day;  in 


326 


THE  SCIENCE  OF  JURISPRUDENCE 


Act  of 
Supremacy, 
the  culmi- 
nation. 


Single 
allegiance. 


Succession 
act  and 
supremacy 
oath. 


Cromwell 
vicar- 
general. 


the  sixth,  the  work  of  separation  was  completed  by  the  Act 
of  Supremacy.1  The  fact  above  all  others  this  parliamentary 
assertion  of  the  royal  supremacy  was  intended  to  establish 
was  that,  by  the  final  secession  of  England  from  the  great 
Christian  commonwealth  of  which  the  pope  was  the  spiritual 
head,  the  dual  allegiance  existing  under  that  system  was 
completely  extinguished ;  that  every  kind  of  allegiance, 
spiritual  as  well  as  temporal,  was  now  concentrated  in  the 
head  of  the  state  as  king  and  pontiff.  In  order  to  pave  the 
way  for  the  recognition  of  that  far-reaching  change,  it  was 
necessary  to  compel  every  subject  to  swear  to  his  belief  in  the 
reality  of  the  king's  new  pretensions  in  the  succession  oath,2 
the  refusal  of  which  was  declared  to  be  treason.  To  remedy 
defects  in  that  oath  was  passed  26  Henry  VIII.,  c.  2,  which 
put  its  legal  authority  beyond  all  question.  An  additional 
act  was  then  passed,  making  the  denial  of  the  supremacy 
treason  under  which  it  was  not  necessary  that  positive  guilt 
should  be  shown ;  it  was  only  necessary  that  a  man  should 
refuse  to  give  satisfactory  answers  to  such  questions  as  should 
be  put  to  him  in  order  to  incur  the  guilt  of  treason.8 

To  enable  the  crown  more  efficiently  to  exercise  the  great 
mass  of  duties  cast  upon  it  by  the  ecclesiastical  supremacy, 
Henry's  first  step  was  to  appoint  Cromwell,  the  architect 
of  the  new  order,  its  chief  administrator  with  the  title  of 
vicar-general,  "with  all  the  spiritual  authority  belonging 
to  the  king  as  head  of  the  church."  4  The  Parliament  of 

1  For  the  best  summary,  see  Amos,  Reformation  Parliament. 

3  Generally  taken  by  all,  including  the  universities  and  convocations  (Wil- 
kins,  Concilia,  iii.  771,  774,  775),  with  the  notable  exceptions  of  Bishop  Fisher 
and  Sir  Thomas  More,  whose  refusal  was  followed  by  imprisonment.     As  to  the 
examination  of  More,  see  his  Works,  pp.  1429,  1447. 

*  As  to  that  act  (26  Hen.  VIII.,  c.  13)  under  which  More,  Fisher,  the  Carthu- 
sians, and  many  others  were  convicted,  see  Lingard,  v.  40,  41 ;  Amos,  pp.  144— 
148.  As  to  More's  warning  to  Fisher  on  this  point,  see  State  Papers,  i.  434. 

4  St.  31  Hen.  VIII.,  c.  10 ;  Wilkins,  Concilia,  iii.  784.    The  ecclesiastical  courts 
were,  however,  permitted  to  retain  their  jurisdiction,  each  judge  making  an  ad- 
dition to  his  style  of  auctoritate  serenissimae  regiae  majestatis  in  h&c  parte  legi- 
time  fulcitus.     See  Amos,  p.  283,  and  note  2. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  327 

1539,  called  to  hush  religious  discord,  —  after  giving  the  king's 
proclamations  the  force  of  law,1  and  authorizing  the  suppres- 
sion of  the  greater  monasteries,2  —  closed  the  doctrinal 
legislation  of  the  reign  by  the  enactment  of  the  Statute  of  Six 
the  Six  Articles,3  fixing  the  standard  of  orthodoxy,  in  which 
it  was  declared:  1.  That  in  the  sacrament  of  the  altar  is 
really  present,  under  the  form  of  bread  and  wine,  the  natural 
body  and  blood  of  Christ,  which,  after  consecration,  remains 
but  the  substance  of  Christ.  2.  That  communion  in  both 
kinds  is  not  necessary  to  salvation.  3.  That  it  is  not  permitted 
to  priests,  after  their  ordination,  to  marry  and  have  wives. 
4.  That  vows  of  chastity  ought  to  be  observed  as  perpetual 
obligations.  5.  That  private  masses  ought  to  be  continued 
for  godly  consolation  and  benefit.  6.  That  auricular  confes- 
sion to  a  priest  must  be  retained  and  continued.  That  Crom- 
well should  have  undertaken  to  prostrate  the  church  at  the 
feet  of  the  monarch  is  not  so  remarkable  as  that  he  should  Parliament 
have  essayed  such  a  task  with  the  aid  of  the  Parliament.  So  Crown. 
far  from  shrinking  from  an  appeal  to  the  estates,  it  was  the 
essence  of  his  policy  to  call  them  together  year  after  year, 
and  to  force  upon  their  attention  every  possible  question  to 
which  he  desired  to  add  the  forms  of  legality  or  the  apparent 
sanction  of  popular  approval.  When  that  series  of  royal 
edicts,  over  which  was  thus  thrown  the  thin  veil  of  national 
assent,  are  examined  as  a  connected  whole,  the  fact  ap- 
pears that  Cromwell  permitted  nothing  to  rob  his  work  of 
the  merit  of  completeness.  Upon  the  abnormal  aggrega- 
tion of  civil  powers,  which  the  growth  of  the  conciliar  system 
had  concentrated  in  the  hands  of  the  crown,  the  absolute 
control  of  the  entire  ecclesiastical  system  was  superimposed. 
From  its  high  place  as  an  estate  of  the  realm  the  church  church  a 

.  department 

was  reduced  to  a  mere  department  of  state;   its  wealth  was  of  state. 

1  31  Hen.  VIII.,  c.  8.  *  31  Hen.  VIII.,  c.  13. 

*  31  Hen.  VIII.,  c.  14.     It  received  the  royal  assent  June  24, 1539,  and  took 
effect  July  12. 


328 


THE  SCIENCE  OF  JURISPRUDENCE 


Henry's 

secular 

legislation. 


Relaxation 
of  feudal 
restraints. 


Act  as  to 
uses  and 
wills. 


laid  at  the  feet  of  the  king,  while  its  ministers,  from  the  high- 
est to  the  lowest,  were  made  to  feel  that  their  right  to  exercise 
their  spiritual  functions  depended  alone  upon  the  royal  au- 
thority, —  an  authority  that  claimed  the  supreme  right  not 
only  to  prescribe  the  forms  of  worship,  but  also  to  define, 
through  the  agency  of  Parliament  and  convocation,  prin- 
ciples of  belief,  and  in  that  way  to  fix  the  difficult  line  then 
dividing  heresy  from  orthodoxy. 

The  absorbing  interest  naturally  centering  in  Henry's 
ecclesiastical  legislation  should  not  be  permitted  to  exclude 
all  interest  in  his  secular  legislation,  especially  that  part  of 
it  which  facilitated  the  important  changes  in  the  law  of  real 
property  that  happily  followed  the  transfer  of  the  vast  es- 
tates that  passed  first  from  the  monasteries  to  the  crown,  and 
then  from  the  crown  to  lay  subjects.  Land  thus  became  to 
an  extent  never  known  before  the  subject  of  bargain  and 
sale,  and  out  of  that  condition  grew  the  necessity  for  a  re- 
laxation of  the  feudal  restraints  that  had  so  long  hindered 
its  alienation.  The  right  of  devise,  practically  extinguished 
by  feudalism,  was  in  a  measure  revived  by  the  growth  of  the 
power  of  the  chancellor  to  compel  the  feoffee  to  convey  to 
the  person  named  in  the  will  of  the  cestui  que  use.1  To  modify 
the  evils  growing  out  of  that  invention  was  passed  "An  Act 
Concerning  Uses  and  Wills,"  whose  primary  purpose  was, 
by  joining  the  possession  to  the  use,  to  abolish  the  distinction 
between  the  legal  and  beneficial  ownership,  and  in  that  way 
to  make  the  ostensible  tenant  also  the  legal  tenant.2  While 
the  immediate  effect  of  that  statute  was  to  give  validity  to 
"bargains  and  sales,"3  not  until  the  passage  of  32  Henry 

1  As  to  the  growth  of  the  equitable  jurisdiction  of  the  chancellor  over  uses,  see 
Digby,  Law  of  Real  Property,  pp.  321-326. 

3  Efforts  had  long  before  been  made  to  protect  creditors,  the  king,  and  the 
feudal  lords  against  the  effects  of  feoff ments  to  use  by  1  Rich.  II.,  c.  9 ;  1  Rich. 
III.,  c.  1,  and  by  4  Hen.  VII.,  c.  17. 

8  In  order  to  prevent  secret  conveyances  of  this  character  a  second  act  was 
passed  in  the  same  year  providing  for  their  enrollment. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  329 

VIII.,  c.  1,  was  the  power  of  devising  interests  in  land  by  will  Act  estab- 

fixed  upon  a  firm  legal  foundation.     To  facilitate  the  transfer  of  devise8  1 

of  land  by  fixing  a  limit  within  which  certain  suits  concerning 

it  should  be  brought,  was  enacted  32  Henry  VIII.,  c.  2,  known  statute  of 

as  the  Statute  of  Limitations.1    As  restraints  upon  alienation 

were  passed  23  Henry  VIII.,  c.  10,  prohibiting  all  gifts  of  land 

to  what  were  then  and  since  known  as  superstitious  uses; 

and  32  Henry  VIII.,  c.  31,  restricting  the  method  of  convey-  Supersti- 

ancing  known  as  common  recoveries  by  the  proviso  that  all  Jnd* ' 

such  recoveries  had  by  the  assent  of  parties  against  the  life-  common 

tenant,  tenant  by  the  courtesy,  and  others  should  be  void 

as  to  those  in  reversion  or  remainder  without  their  consent, 

unless  it  was  by  a  good  title.2 

How  to  provide  for  the  permanency  of  his  work,  how  to  Henry's 
secure  the  stability  of  the  throne  during  the  bitter  strife  that  rTngements. 
was  sure  to  follow  the  transfer  of  the  vast  powers  concentrated 
in  his  own  strong  hands  to  those  of  his  infant  successor,  were 
the  perplexing  problems  that  vexed  the  king's  life  as  it  drew  His  three 
to  a  close.    The  three  memorable  acts  3  regulating  the  sue- 
cession  during  Henry's  reign  removed  any  doubt  that  might 
have  remained  as  to  the  fact  that  the  crown  cannot  "  descend 
from  ancestor  to  heir  in  a  certain  established  course  of  de- 
scent," where  there  is  an  "act  of  the  legislature  intervening." 
Under  either  theory  the  right  of  Edward  was  perfect.     He 
was  not  only  Henry's  lawful  male  heir,  but  his  right  to  the 
succession  had  been  expressly  recognized  not  only  by  the  act 
of  28  Henry  VIII.,  c.  7,  but  also  by  the  subsequent  act  of  35 
Henry  VIII.,  c.  1,  which,  after  affirming  his  right,  put  in  the 

1  The  principle  of  that  statute  had  already  been  established  in  the  statute  of 
non-claim  (4  Hen.  VII.,  c.  24).  Reeves,  History  of  English  Law,  iii.  310,  note  a. 

*  From  the  time  of  "Taltarum's  Case  "  (12  Edw.  IV.),  the  fictitious  suits  known 
as  common  recoveries  had  been  employed  as  a  method  of  conveying  land,  and 
they  continued  to  be  so  employed  down  to  1834,  when  they  were  abolished  by  3 
and  4  Will.  IV.,  c.  74. 

»  25  Hen.  VIII.,  c.  22 ;  28  Hen.  VIII.,  c.  7 ;  35  Hen.  VIII.,  c.  1.  For  a  detailed 
history  of  these  acts,  see  Sir  Michael  Foster,  Crown  Law,  pp.  406  sq. 


330  THE  SCIENCE  OF  JURISPRUDENCE 

entail,  next  after  the  lawful  issue  of  the  king  and  Prince 
Edward,  first  Mary  and  then  Elizabeth,  subject  to  such  con- 

Final  dis-      ditions  as  the  king  by  his  letters  patent  or  his  last  will  might 

b^wiLL  appoint.  After  supplementing  that  arrangement  by  a  will 
providing  that  —  on  the  failure  of  issue  of  his  three  children 
—  the  crown  should  pass  to  the  heirs  of  his  younger  sister 
Mary,  duchess  of  Suffolk,  to  the  detriment  of  those  of  his 
elder  sister  Margaret  of  Scotland,1  Henry  named  the  sixteen 
executors,  who  were  to  constitute  the  council  of  regency  during 
the  minority,  a  council  whose  members  were  drawn  in  such 
equal  proportions  from  the  ranks  of  conservatives  and  reform- 

Edward  vi.  ers  as  to  warrant  the  hope  that  the  influence  of  the  one  would 

English        stand  as  a  check  upon  that  of  the  other. 


common  ^aw  neither  contemplated  nor  provided 
of     for  a  minority,  for  the  reason,  no  doubt,  that  under  the  ancient 

Henry  III. 

elective  system  the  king  was  supposed  to  be  adult  and  per- 
sonally competent  to  govern.2  The  first  regency  that  occurred 
after  the  Conquest  grew  out  of  the  accession  of  Henry  III., 
just  after  the  completion  of  his  tenth  year.  How  at  that 
time  the  royal  authority  was  vested  in  the  earl  Marshall,  the 
elected  representative  of  the  baronage,  who  carried  on  the 
government  under  the  title  of  rector  regis  et  regni,  has  been 
explained  already.  After  the  deposition  of  Edward  II.,  the 
first  since  the  Conquest,  and  the  election  of  his  son,  then  in 

Edward  in.  his  fourteenth  year,  Parliament  was  a  second  time  called  upon 
to  constitute  a  regency,  a  duty  discharged  by  the  appoint- 
ment of  a  standing  council  of  four  bishops,  four  earls,  and  six 
barons,  who,  under  the  lead  of  the  earl  of  Lancaster,  the  king's 
cousin,  were  to  advise  in  all  matters  of  government.8  Al- 

Hichard  II.    though  Richard  II.  was  at  the  time  of  his  accession  only  eleven 

1  Foedera,  xv.  114—1  17.  As  to  the  vexed  questions  involved  in  the  alterations 
of  the  will  and  its  valid  execution,  see  Lingard,  v.  212  sq.  and  notes  ;  Blount, 
Reformation  of  the  Church  of  England,  ii.  6;  Bailey,  Succession  to  English 
Crown,  pp.  156-164. 

a  Coke  tells  us  why  the  king  cannot  be  a  minor.     Co.  Litt.  43. 

*  Rot.  Parl.  ii.  52  ;  Knyghton,  col.  2556. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  331 

years  old,  no  personal  regent  was  appointed.    The  day  after 

his  grandfather's  death  the  first  king  to  succeed  under  the 

new  doctrine  of  representation  took  the  great  seal  from  the 

hands  of  its  keeper  and  passed  it  over  to  his  uncle,  the  duke  of 

Lancaster,  who,  four  days   later,  passed  it  to   the   bishop 

of  St.  David's,  who,  by  virtue  of  its  possession,  under  the 

subtile  legal  theory  then  in  vogue,  was  able  to  legalize  all 

acts  of  government.    The  lords  then  limited  that  arrange- 

ment by  the  appointment  of  a  council  of  twelve,  without 

whose  concurrence  nothing  was  to  be  carried  into  effect.1 

At  the  accession  of  Henry  VI.,  Parliament  dealt  with  the  fourth  Henry  vi. 

minority  since  the  Conquest  by  ignoring  the  directions  of 

the  dead  king,  and  by  setting  up  in  their  stead  an  arrange- 

ment of  its  own  under  which  the  duke  of  Bedford  (and  in  his 

absence  the  duke  of  Gloucester)  became  protector  and  de- 

fender of  the  realm  with  the  aid  of  a  council  of  sixteen,  after- 

ward constituted  to  aid  him  in  carrying  on  the  government.3 

The  brief  and   tragic  reign  of  the  infant  King  Edward  V.  Edward  v. 

opens  with  a  struggle  for  the  regency  between  the  queen- 

mother  and  the  duke  of  Gloucester,  who,  in  May,  1483,  was 

declared  "protector  of   king  and  kingdom"  by  an  irregular 

assembly  of  magnates  and  citizens.3    By  that  time  the  follow- 

ing principles  of  constitutional  law  seem  to  have  been  distinctly 

recognized:    (1)  That  to  Parliament  as  a  whole  belonged  the  Four 

exclusive  right  to  constitute  a  regency,  whenever  the  king 

from  infancy  or  mental  incapacity  was  personally  incapable 


of  performing  his  functions  ;   (2)  that  the  king  did  not  possess  M  to 

regencies. 

the  power  to  constitute,  "by  his  last  will  nor  otherwise,"  a 
regency  during  the  minority  of  his  successor,  "without  the 
assent  of  the  three  estates";  (3)  that  neither  the  heir  pre- 
sumptive nor  any  other  member  of  the  royal  house  had  the 

1  Rot.  Parl.  iii.  386. 

2  Lords'  Report,  i.  368.     As  to  the  admonition  of  the  lords  to  Gloucester,  as 
to  the  nature  and  extent  of  his  powers,  see  Rot.  Parl.  iv.  326. 

3  Rot.  Parl.  vi.  240,  241. 


332 


THE  SCIENCE  OF  JURISPRUDENCE 


Somerset. 


Cranmer. 


Protecto- 
rate of 
Somerset. 


right  as  such  to  claim  the  regency,  although  they  were  often 
chosen  by  reason  of  their  nearness  in  blood;  (4)  that  when 
a  regency  was  to  be  constituted,  it  was  usual  for  Parliament 
to  vest  the  royal  power  either  in  some  magnate  individually, 
as  guardian  or  protector,  acting  with  the  advice  of  a  council, 
or  in  a  council  or  regency  without  a  dominant  head.  Such 
were  the  principles  that  stood  forth  as  guides  and  as  warn- 
ings to  Henry  VIII.  And  yet  despite  all  the  precautions 
taken  under  the  provisions  of  the  statute  (28  Henry  VIII.,  c.  7), 
the  whole  scheme  was  at  once  set  aside  by  Edward  Seymour, 
earl  of  Hertford,  uncle  of  the  infant  king,  who,  in  defiance  of 
the  terms  of  the  will,  and  without  the  authority  of  Parliament, 
converted  the  carefully  balanced  regency  into  a  protectorate 
with  himself  at  its  head.  Upon  the  ground  that  business 
could  not  be  conveniently  dispatched  unless  some  one  "should 
be  preferred  in  name  and  place  before  other,  to  whom,  as  to 
the  head  of  the  rest,  all  strangers  and  others  might  have  ac- 
cess," it  was  resolved,  that  Hertford  should  be  given  the  first 
place  "as  protector  of  all  the  realms  and  dominions  of  the 
king's  majesty,  and  governor  of  his  most  royal  person,  with 
the  special  and  express  condition,  that  he  shall  not  do  any 
act  but  with  the  advice  and  consent  of  the  rest  of  the  execu- 
tors." l  Out  of  the  shower  of  titles  that  ensued  Hertford 
emerged  as  the  duke  of  Somerset,  his  brother  Thomas  as 
Lord  Seymour,  while  estates  carved  from  the  possessions  of 
the  monasteries  passed  to  many,  including  Cranmer,2  whose 
consecration  as  primate  had  taken  place  in  March,  1533.3 

From  March  12,  1547,  until  October  14,  1549,  Somerset 
was  in  full  possession  of  the  royal  authority  as  protector. 

1  Records  of  the  Privy  Council,  Edward  VI.,  M.S.  Council  Office.  The  letters 
to  foreign  sovereigns  announcing  Henry's  death  went  out  "under  the  hand 
and  subscription  only  of  the  Lord  Protector." 

8  Strype,  Eccl.  Mem.  II.  i.  123,  ed.  1822;  Records  of  the  Privy  Council, 
Edward  VI.,  M.S. 

*  The  necessary  bulls  were  expedited  on  the  21st  and  22d  of  February  and 
the  3d  of  March  of  that  year,  and  the  consecration  took  place  on  the  30th  of 
that  month. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  333 

During  that  period  it  was  that  the  English  Reformation 
was  fairly  inaugurated  through  the  joint  efforts  of  Somerset 
and  Cranmer,  the  former  supplying  the  political  authority, 
the  latter  the  intellectual  guidance  that  directed  the  English 
Church  along   the  conservative  path  through  which  it   ap- 
proached without  reaching  the  goal  already  attained  by  the 
continental  Reformation.    The  character  and  scope  of  the  Patents  to 
jurisdiction  which  the  patents  to  the  bishops  undertook  to 
confer  was  clearly  defined  in  that  granted  to  Archbishop 
Cranmer,  in  which  the  fact  was  asserted  that  all  kinds  of 
jurisdiction  were  derived  from  the  king  as  supreme  head  of 
the  church,  as  well  the  right  of  the  archbishop  to  ordain 
in  his  diocese  as  his  right  to  hear  causes  in  his  ecclesiastical 
court.1    The  new  doctrine  thus  emphatically  asserted,  that 
the  crown  and  not  the  pope  was  the  source  of  all  ecclesiastical  Crown,  not 
jurisdiction,  soon  received  a  fresh  application  through  the  order  onuris?1™ 
made  by  the  council  on  May  4  for  a  general  "visitation,"  dlctlon- 
a  prerogative  first  transferred  from  the  pope  to  the   crown 
by  the  act  of  25  Henry  VIII.,  c.  21,  §  20,  soon  followed  by 
the  Act  of  Supremacy  (26  Henry  VIII.,  c.  1),  by  which  the 
right  to  visit  and  reform  received  a  still  wider  application.  Right  to 
In  order  that  the  subject  of  ecclesiastical  reform  might  be  ^f0^n 
discussed  without  danger,  when  Parliament  met  in  November, 
it  was  necessary  to  repeal  the  bloody  act  of  the  Six  Articles, 
in  which  Henry  had  attempted  to  put  forth  for  the  first 
time  a  positive  statutory  definition  of  heresy.    As  an  abroga- 
tion of  that  system  was  passed  1  Edward  VI.,  c.  12,  in  which 
not  only  the  act  of  the  Six  Articles,  but  all  "  acts  of  Parlia-  six  Articles 
ment  and  statutes  touching,  mentioning,  or  in  any  wise  con-  ^ts° 
cerning  religion  and  opinions"  were  repealed.2    Thus  was 

1  Cranmer 's  commission  is  entitled  Commiasio  regia  archiaepiscopo  Cantuar. 
ad  exercendum  suam  jurisdictionem.  Wilkins,  Concilia,  iv.  2 ;  Burnet,  Collec- 
tanea. 

3  For  a  masterful  exposition,  see  Stephen,  History  of  the  Criminal  Law  of 
England,  U.  438-475. 


334  THE  SCIENCE  OF  JURISPRUDENCE 

restored  "the  common  law  as  to  heresy,"  but  the  law  so  re- 
stored was  understood  to  be  the  law  as  settled  in  Sawtre's 
Common       case1  at  the  beginning  of  the  reign  of  Henry  IV.,  which  au- 
heresy  °       thorizcd  the  burning  of  a  heretic  by  the  writ  De  haeretico 
comburendo  after  a  conviction  by  a  provincial  council.     The 
mass  so  resolutely  retained  by  the  Six  Articles  was  superseded 
by  an  act  (1  Edward  VI.,  c.  I)2  which,  after  providing  punish- 
Mass  super-  ment  for  such  as  should  revile  the  sacrament,  enjoined  the 
communion,  receiving  of  it  under  both  kinds  on  the  laity  as  well  as  the 
clergy,  an  act,  after  repeal  and  revival,  still  in  force.    While 
the  Act  of  Supremacy  remained  unrepealed  until  the  next 
Treasons       reign,  the  famous  treasons  act  (26  Henry  VIII. ,  c.  13)  by  which 

act  of  26 

Hen.  viii.,  it  was  supplemented  was  now  wiped  out  by  1  Edward  VI.,  c.  12, 
providing  that  nothing  should  be  held  to  be  treason  except 
offenses  against  the  old  treasons  act  of  25  Edward  III.,  c.  3, 

c.  3,  re-        and  such  as  were  created  by  its  own  terms.     In  1552,  some  of 

stored. 

the  abolished  treasons  were   reenacted  and  some  new  ones 

created,  subject,  however,  to  the  all-important  constitutional 

limitation  providing  that  no  person  should  henceforth  be 

indicted  or  attainted  for  any  kind  of  treason  except  on  his 

voluntary  confession,  or  upon  the  testimony  of  two  lawful 

witnesses  with  whom  the  accused  should  be  confronted  on  the 

trial.3    By  the  same  act 4  that  abolished  the  new  treasons 

arriving      created  during  the  reign  of  Henry  VIII.  was  repealed  the  act 

royal  proc-    that  had  given  to  his  proclamations  the  force  of  law.    As 

lamationa 

force  of  law.  to  the  chantry  lands,  —  conveyed  in  trust  to  maintain  the 

1  Sawtre  was  the  first  of  the  Lollards  executed  for  heresy  in  England.  He  was 
executed  by  virtue  of  the  king's  writ,  and  not  under  the  statutes.  See  Black- 
stone,  Comm.,  bk.  iv.,  p.  46,  and  the  criticism  of  his  statement  by  Stubbs,  Con- 
stitutional History,  iii.  358  and  note  4. 

a  That  act  confirmed  a  canon  passed  by  convocation  in  December,  1547,  pro- 
viding for  communion  in  both  kinds.  Strype,  Mem.  Cranmer,  ii.  37 ;  Wilkins, 
Cone.  iv.  16. 

*  The  act  of  5  and  6  Edw.  VI.,  c.  2,  provided  for  "two  lawful  accusers."  As  to 
the  subsequent  disregard  of  the  act,  see  Foster,  Crown  Law,  pp.  232-251. 

4  1  Edw.  VI.,  c.  12.  Despite  the  statute,  however,  the  practice  of  issuing 
proclamations  continued  for  a  long  time  thereafter. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  335 

saying  of  masses  for  the  benefit  of  the  souls  of  the  donors  or 
their  relations,  —  it  may  be  said  that  in  order  to  prevent 
the  making  in  future  of  such  grants,  embracing  not  only  "su- 
perstitious uses,"  but  also  "good  and  charitable  uses,"  as 
afterwards  defined,  was  passed  the  statute  of  23  Henry  VII., 
c.  10,  declaring  all  such  dispositions  void.     After  the  confis- 
cation of  the  monastic  property  by  acts  passed  in  the  twenty- 
seventh  and  thirty-second  years  of  Henry's  reign,  a  retrospec- 
tive act l  was  passed  in  the  thirty-seventh  of  that  reign  giving  chantry 
the  lands  granted  in  trust  as  above  described  to  the  king,  ^king™11 
As  the  execution  of  that  act  was  prevented  by  Henry's  death, 
another  of  the  same  character  was  passed  in  Edward's  first 
Parliament,2  under  which  commissioners  were  appointed  who 
soon  placed  the  chantry  lands  under  the  control  of  the  privy 
council.     In  the  second  session  of  that  Parliament  the  work 
of  the  English  Reformation  was  advanced  by  a  statute  de- 
claring the  marriage  of  priests  to  be  lawful;3   and  by  the  Marriage 
adoption  of  the  changes  of  creed  and  ritual  brought  forward 
by  Cranmer  in  the  first   Book  of  Common  Prayer,  which 
received  the  sanction  of  the  state  by  being  annexed  as  a 
schedule  to  the  first  Act  of  Uniformity  4  providing  that  it  Act  of 
should  go  into    effect  throughout  the  Church  of   England  al^|  Book7 
on  the  9th  of  July,  1549.     The  supreme  question  involved  °f  Commou 

i  r&y  cr  • 

was  that  of  the  communion,  a  question  that  had  already 
been   passed   upon   in   the   previous    session    by   the    act 
which,  without   materially   changing   the   Catholic    dogma, 
commended  the  giving  of  the  elements  in  both  kinds  to  clergy 
and  laity.     In  order  to  adopt  the  change  thus  made  to  the 
service  of  the  mass,  an  "Order  of  Communion"  had  been  "Order of 
promulgated  by  the  crown,5  prior  to  the  adoption  of  the  first  ion.» 
prayer  book,  consisting  of  a  brief  service  in  English  which, 
beginning  after  the  communion  of  the  priest,  regulated  the 

1  37  Hen.  VIII.,  c.  4.  *  Edw.  VI.,  c.  14. 

»  2  and  3  Edw.  VI.,  c.  21.  «  2  and  3  Edw.,  VI.,  c.  1. 

1  By  proclamation  dated  March  8,  1548. 


336 


THE  SCIENCE  OF  JURISPRUDENCE 


Fall  of 

Somerset, 

1549. 


Govern- 
ment of 
Warwick. 


Merce- 
naries 

employed  in 
England. 


No  change 
of  policy. 


Riot  Act 
of  3  and  4 
Edw.  VI., 
c.  10. 


Second  Act 
of  Uni- 
formity. 


administration  of  the  sacrament  to  the  laity.  In  the  first 
or  "high  church"  prayer  book  the  communion  service  so 
arranged  was  retained  without  material  alteration.  Thus 
took  place  the  memorable  revision  of  the  devotional  system  of 
the  Church  of  England  during  the  protectorate  of  Somerset, 
who  was  declared  a  traitor  and  sent  to  the  Tower  in  October, 
1549.1 

The  fall  of  the  Protector  was  the  consequence  of  his  failure 
to  cope  with  the  agrarian  difficulties  resulting  from  the  break- 
ing up  of  the  manorial  system,  an  event  that  seriously  affected 
the  relation  of  landlord  and  tenant.2  His  place  was  taken  by 
Warwick,  who,  as  the  chosen  leader  of  the  landowning  gentle- 
men, crushed  the  revolt  of  the  peasant  class  in  the  eastern 
counties  by  the  aid  of  German  and  Italian  mercenaries,  now 
for  the  first  time  employed  by  English  rulers  for  the  coercion 
of  English  subjects.  While  the  executors  of  Henry  regained 
authority  under  the  lead  of  Warwick,  there  was  no  change 
of  policy,  as  he,  no  less  than  Somerset,  was  one  of  the  "new 
men"  whose  fortunes  had  sprung  out  of  the  religious  revo- 
lution to  which  all  the  nobles  of  the  new  blood  were  irrevoca- 
bly committed.  The  despotic  conciliar  system  Cromwell  had 
organized  was  to  be  administered  as  before  by  a  new  master, 
as  cautious  and  decisive  as  his  predecessor  had  been  impru- 
dent and  irresolute.  His  first  measure  was  a  riot  act  (3  and 
4  Edward  VI.,  c.  10),  which  made  it  felony  for  persons  to  the 
number  of  twelve  or  more  to  assemble  for  the  purpose  of  abat- 
ing the  rents  of  farms  or  the  price  of  provisions,  for  the  de- 
struction of  houses  or  parks,  or  for  the  assertion  of  common 
rights.  A  bitter  attack  upon  the  prayer  book  of  1549  led  to 
a  second  Act  of  Uniformity  (5  and  6  Edward  VI.,  c.  1),  which 
provided  that  the  second  or  "low  church"  prayer  book  should 


1  Grey  Friars'  Chronicle,  Camden  Society,  p.  14. 

8  For  details  and  authorities,  see  Taylor,  The  Origin  and  Growth  of  the  English 
Constitution,  ii.  121  sq. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  337 

take  the  place  of  the  first  on  November  1,  1552.1    While  the 
archbishop  was  thus  engaged  in  completing  the  revision  of 
the  church's  devotional  system,  he  was  at  the  same  time 
advancing  the  preparation  of  the  famous  formularies  known 
as  the  Forty-two  Articles  (afterwards  reduced  to  Thirty-  The  Forty- 
nine),  which  were  designed  to  end  doctrinal  controversy  and  *^ 
to  establish  uniformity  of  opinion  by  virtue  of  authorita- 
tive definitions  upon  disputed  questions  sanctioned  by  both 
church   and   state.2    After  Edward's   death   these   articles, 
promulgated  in  the  last  year  of  his  reign,  passed  into  an 
obscurity  from  which  they  did  not  emerge  until  five  years 
after  the  accession  of  Elizabeth.3    The  attempt  made  in  this  Attempt 
reign  to  codify  the  ecclesiastical  laws  of  the  realm,  which  the  ecciesiL^ 
religious  revolution  had  left  in  a  state  of  great  confusion,  tlcallaw- 
proved  abortive.    After  an  utter  failure  by  crown  and  Par- 
liament to  provide  a  comprehensive  ecclesiastical  code  which, 
like  the  prayer  book  and  the  Thirty-nine  Articles,  might  have 
stood  as  an  enduring  monument,  convocation  contented  itself 
with  the  enactment  from  time  to  time  of  such  canons  as  the 
discipline  of   the   church   most   urgently  required.4    When, 
in  May,  1553,  it  was  clear  that  Edward  was  dying,  Warwick,  Edward's 
who  had  assumed  the  title  of  duke  of    Northumberland,  fhe^&l"1 
was  brought  face  to  face  with  a  catastrophe  that  threatened  cession- 
not  only  his  personal  fortunes,  but  those  of  the  Reformation. 
The  problem  was,  how  to  provide  an  heir  to  the  throne  that 
would  be  propitious  to  both.    The  means  seized  upon  for 
the  accomplishment  of  the  end  in  view  was  a  will  to  be  made 

1  A  good  account  of  the  prayer  book  of  1552  may  be  found  in  Blount,  Reforma- 
tion of  the  Church  of  England,  ii.  94-107. 

*  As  to  their  making  and  promulgation,  see  Hard  wick,  History  of  the  Articles. 

*  As  to  their  adoption  by  convocation,  see  Wilkins,  Cone.  iv.  237 ;  Gibson, 
Synod.  Anglic.,  p.  145,  ed.  1854.     They  were  then  submitted  to  the  crown  for 
ratification,  according  to  the  Act  of  Submission,  and  were  so  ratified  under  the 
great  seal.     Coke,  Int.  iv.  74. 

*  As  to  the  still-born  production,  known  to  the  learned  as  "  The  Reforma- 
tion of  the  Ecclesiastical  Laws,"  see  Harl.  MSS.,  p.  426;  Blount,  Reformation 
of  the  Church  of  England,  ii.  112-115. 


338 


THE  SCIENCE  OF  JURISPRUDENCE 


Lady  Jane 
Grey  and 
Dudley. 


Will  exe- 
cuted June 
21.     Ed- 
ward died 
July  6, 1553. 


Mary  and 
the  Catholic 
reaction : 
first  two 
stages  of 
English 
Reforma- 
tion. 


by  Edward,  without  parliamentary  authority,  naming  as  his 
immediate  successor  Lady  Jane  Grey,  the  granddaughter 
of  Mary,  duchess  of  Suffolk,  who  had  been  married  to  Guild- 
ford  Dudley,1  fourth  son  of  Northumberland.  This  grossly 
illegal  attempt  to  remove  the  prior  claimants  to  the  succession 
as  settled  by  Parliament  by  a  king  still  in  his  minority  was 
earnestly  opposed  by  the  judges,  the  law  officers  of  the  crown, 
and  the  archbishop,  as  a  desperate  measure  that  would  in- 
volve all  concerned  in  it  in  the  guilt  of  treason.2  But  boy 
as  he  was,  and  dying  as  he  was,  Edward  was  immovable. 
His  zeal  for  the  "religion"  was  such  that  he  felt  that  every- 
thing must  yield  to  the  necessities  of  "  his  device  for  the  suc- 
cession," through  which  he  confidently  believed  he  could 
transmit  the  crown  to  a  Protestant  successor.  On  the  21st 
of  June  all  the  formalities  incident  to  the  execution  of  the  will 
or  letters  patent a  were  completed,  and  on  July  6  Edward 
died.  Although  Northumberland  was  reluctantly  supported 
at  first  by  the  council,  backed  by  the  foreign  mercenaries  and 
by  the  extreme  Protestants,  his  whole  incoherent  and  im- 
practicable scheme  collapsed  in  the  presence  of  a  popular  out- 
burst in  Mary's  favor,  that  sent  him  to  the  block,  and  with 
him  the  hapless  girl  he  had  involved  in  the  toils  of  his  ambi- 
tion. 

15.  With  the  death  of  Henry  VIII.  ended  the  first  stage 
of  the  English  Reformation,  consisting  of  the  severance  from 
the  Roman  see,  by  a  political  act,  of  a  people  impelled  by  a 
growing  sense  of  nationality  to  assume  absolute  independence, 
without  any  departure  whatever  from  the  Roman  dogma 
and  ritual  employed  by  the  national  church  from  the  earliest 
times.  With  the  death  of  Edward  VI.  ended  the  second  stage, 
embracing  the  changes  of  dogma  and  ritual  embodied  under 

1  Celebrated  May  25,  1553.  2  Burnet,  History  of  Reformation,  i.  454. 

*  See  the  copy  printed  for  the  Camden  Society  by  Mr.  John  G.  Nicols, 
Letters  Patent  for  the  Limitation  of  the  Crown :  Queen  Jane  and  Queen  Mary, 
Appendix.  See  also  Bailey,  The  Succession  to  the  Crown,  p.  167. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  339 

the  guidance  of  Cranmer  in  the  prayer  book  and  the  Forty- 
two  Articles,  which,  by  virtue  of  the  Acts  of  Uniformity, 
were  made  the  standards  of  orthodoxy.  Certain  it  is  that 
the  period  occupied  by  the  second  stage  was  one  of  great  want, 
misery,  and  administrative  disorder,  during  which  the  cause 
was  prejudiced  by  the  selfish  conduct  of  the  knot  of  greedy 
Protestant  nobles  who  at  Henry's  death  seized  upon  the  powers 
of  the  privy  council,  by  means  of  which  they  completed  the 
confiscation  of  the  property  of  the  church  in  order  to  enrich 
themselves,  while  they  permitted  the  public  treasury  to  be- 
come empty,  the  expenses  of  the  court  to  be  increased,  the 
coinage  to  be  debased,  and  the  peasantry  to  be  oppressed  by 
a  heartless  policy  of  inclosures  carried  out  in  the  interest  of 
the  landlords  by  the  aid  of  foreign  mercenaries.  It  is  not 
therefore  strange  that  when  the  upstart  Northumberland, 
around  whom  had  gathered  the  hate  such  a  policy  naturally 
engendered,  attempted  to  consummate  his  selfish  work  by 
a  grossly  illegal  attempt  to  transfer  the  crown  itself  to  his 
own  family,  the  nation  should  have  risen  in  arms  against  him ; 
and  that  when  his  puppet  queen,  Protestant  as  she  was, 
was  proclaimed,  on  the  10th  of  July,  1553,  but  "few  or  none 
said,  God  save  her."  * 

On  August  3,  Queen  Mary,  as  to  whose  religious  status  Mary  pro- 
there  could  be  neither  doubt  nor  question,  after  having  been  t^the 
proclaimed  by  the  council  on  the  19th  of  July,  entered  London  councU- 
with  Elizabeth  by  her  side  amid  the  acclaim  of  the  populace, 
and  according  to  custom  she  proceeded  to  the  Tower,  where 
she  found  awaiting  her  upon  the  green  an  historic  group  of 
state  prisoners,2  among  whom  were  the  old  duke  of  Norfolk 
and  Gardiner,  bishop  of  Winchester,  who,  after  a  rigid  con- 
finement of  five  years,  now  came  forth  to  take  the  first  place 
at  Mary's  side  as  the  counselor  who  was  to  direct  the  con- 

1  Grey  Friars'  Chronicle,  p.  79 ;  Holinshed,  Chronicle,  p.  1087. 
a  Renard  to  Charles  V.,  Rolls  House  MSS. 


340 


THE  SCIENCE  OF  JURISPRUDENCE 


Gardiner's 
conserva- 
tive policy. 


Mary's 
first  Par- 
liament. 


Treasons 
act  of  25 
Edw.  III. 
restored. 


Queen's 
legitimacy. 


Repeal  of 
statutes  as 
to  creed  and 
ritual. 


servative  policy  that  prevailed  down  to  the  Spanish  marriage, 
and  the  subsequent  domination  of  Philip  and  Pole.  Gardiner 
—  who  had  been  sent  to  the  Tower  by  Somerset,  despite  a 
memorable  sermon  against  the  papal  and  in  favor  of  the 
royal  supremacy  *  —  returned  to  power,  resolved  to  reestablish 
Henry's  ecclesiastical  system  in  the  identical  form  in  which 
he  had  left  it.  After  the  restoration  of  the  bishops 2  who 
had  been  deposed  and  imprisoned  in  the  preceding  reign,  and 
the  execution  of  justice  upon  three  of  the  ringleaders  of  the 
conspiracy  against  the  queen,3  Mary's  first  Parliament, 
which  met  on  the  5th  of  October,  addressed  itself  under 
Gardiner's  guidance  to  the  task  of  wiping  out  only  so  much  of 
Edward's  ecclesiastical  legislation  as  would  make  possible  the 
restoration  of  the  legal  conditions  as  they  existed  in  the  last 
year  of  Henry  VIII.  The  session  opened  with  the  ancient  form 
of  the  mass,  so  long  omitted,  and  the  first  act  of  the  reign 
reestablished  the  law  of  treason  as  defined  by  25  Edward  III., 
by  reenacting  the  repealing  section  of  the  act  of  Edward  VI., 
with  the  addition  of  the  words  extending  it  to  misprision  of 
treason.4  The  next  act,5  in  order  to  settle  the  question  of 
the  queen's  legitimacy,  after  declaring  the  validity  of  the 
marriage  of  her  mother  with  Henry,  annulled  the  sentence 
of  divorce  pronounced  by  Cranmer,  as  well  as  all  acts  of 
Parliament  that  questioned  her  legitimacy.  Then  followed 
the  act 6  repealing  nine  statutes  passed  in  Edward's  reign, 
relating  to  creed  and  ritual,  the  marriage  of  priests,  and  the 
election  of  bishops,  which  may  be  enumerated  as  follows: 
the  two  Acts  of  Uniformity,  and  that  authorizing  the  Ordinal 

1  Foxe,  vi.  87-93,  ed.  1838. 

3  As  to  the  return  of  Bonner  from  the  Marshalsea,  see  Grey  Friars'  Chronicle, 
p.  82. 

'  Northumberland,  Gates,  and  Palmer  were  executed  for  high  treason  on 
August  22. 

*1  Mary,  c.  1. 

*  1  Mary,  sess.  2,  c.  1.  Nothing  was  said  in  the  act  as  to  the  papal  dispensa- 
tion, an  omission  of  which  Pole  afterward  bitterly  complained.  See  Strype, 
Cranmer,  iii.  477,  478.  •  1  Mary,  sess.  2,  c.  2. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  341 

(2  Edward  VI.  1;  5  Edward  VI.  1;  3  Edward  VI.  12),  the 
act  authorizing  the  communion  in  both  kinds  (1  Edward  VI. 
1),  the -act  authorizing  the  appointment  of  bishops  without 
election  (1  Edward  VI.  2),  the  act  for  the  limitation  of  holy 
days  (5  Edward  VI.  3),  the  act  abolishing  the  old  service 
books  (2  Edward  VI.  10),  and  the  two  acts  permitting  priests 
to  marry  (2  Edward  VI.  21;  5  Edward  VI.  12).  By  the  ex- 
press terms  of  the  repealing  act  "all  such  divine  service  and 
administration  of  the  sacraments  as  were  most  commonly 
used  in  this  realm  of  England  in  the  last  year  of  the  reign  of  Henry's 
our  late  sovereign  lord,  King  Henry  VIII.,  shall  be,  from  and 
after  the  20th  day  of  December,  1553,  used  throughout  the 
whole  realm  of  England,  and  all  other  the  Queen's  Majesty's 
dominions."  And  the  same  rule  was  repeated  in  the  next  act,1 
which  provided  for  the  punishment  of  all  who  should  molest 
priests  "celebrating  the  mass  or  other  such  divine  service, 
sacraments,  or  sacramentals,  as  was  most  commonly  fre- 
quented and  used  in  the  last  year  of  the  reign  of  the  late  sov- 
ereign lord,  King  Henry  the  Eighth."  While  thus  conserv- 
ing and  restoring  Henry's  work,  Parliament  was  careful  not 
to  repeal  the  Act  of  Supremacy,  and  Mary  accordingly  re-  Act  of 
tained  the  title  of  "Supreme  Head"  down  to  April  2,  1554,2 
a  date  subsequent  to  the  arrangement  of  her  marriage  with  Pealed- 
Philip.  That  event  marks  the  beginning  of  a  new  policy  that 
culminated  in  the  wiping  out  of  the  entire  scheme  of  legislation 
through  which  the  supremacy  of  the  pope  had  been  repudiated. 

Cardinal  Pole,  the  queen's  second  cousin  once  removed,  Cardinal 
who  had  been  commissioned  as  legate 3  the  moment  that 

1  1  Mary,  sess.  2,  c.  3. 

2  The  first  Parliament  was  summoned  in  the  name  of  "Mary  .  .  .  Defender 
of  the  faith  and  of  the  Church  of  England  and  also  of  Ireland,  in  earth  Supreme 
Head,"  a  title  retained  in  the  first  nineteen  acts  of  the  reign.     On  April  2,  1554, 
the  title  was  changed  by  an  omission  of  the  last  clause. 

1  By  Julius  III.,  who  at  the  same  time  sent  from  Brussels  a  secret  agent, 
through  whom  Mary  communicated  to  the  pope  and  Pole  her  desire  to  reunite 
her  kingdom  to  the  Roman  see.  Pallavicino,  ii.  397;  Quirini'a  Collection  of 
Pole's  Letters,  iv.  111. 


342 


THE  SCIENCE  OF  JURISPRUDENCE 


A  marriage 
bill  passed, 
April,  1554. 


Also  an  act 
to  legalize 
Mary's 
position  as 
queen 
regnant. 


Means  to 
secure  a 

compliant 
Parliament. 


Edward's  death  was  known  at  Rome,  although  he  was  pre- 
vented by  his  attainder  from  entering  the  kingdom,  soon 
journeyed  as  far  as  Flanders  in  order  the  more  promptly  to 
act  as  the  queen's  adviser.  In  April,  1554,  the  houses  were 
called  together,  when  the  marriage  articles,  as  proposed  by 
the  emperor  and  as  modified  by  the  queen's  advisers,  were 
submitted  and  the  marriage  bill  passed  so  soon  as  the  parlia- 
mentary forms  could  be  complied  with.1  Then  followed  an 
act  made  necessary  by  the  fact  that  Mary  was  the  first  queen 
regnant  who  had  ever  made  good  her  title  to  the  crown  of 
England.2  Some  of  the  Protestant  preachers  had  claimed  that 
the  rule  of  a  woman  was  not  only  prohibited  by  the  word  of 
God,  but  that  the  laws  of  the  land,  made  alone  for  kings,  failed 
to  recognize  the  prerogatives  of  queens.  To  remove  all  con- 
stitutional difficulties  upon  that  score,  an  act 3  was  passed  pro- 
viding that  "  the  royal  power  and  dignities  vested  in  a  queen 
the  same  as  in  a  king,"  and  that  all  statutes  applied  equally 
to  the  sovereign,  whether  male  or  female.  After  the  failure 
to  secure  the  passage  of  four  bills  presented  by  the  chancellor 
to  regulate  the  succession,  to  restore  the  Six  Articles,  to  re- 
enact  the  statute  De  haeretico  comburendo,  and  to  restore  the 
jurisdiction  of  the  bishops,4  Parliament  was  dissolved  on  the 
5th  of  May,  and  before  the  end  of  July  the  fateful  union  be- 
tween Philip  and  Mary  was  celebrated  at  Winchester.  Cer- 
tain it  seems  to  be  that  there  was  interference  with  the  elec- 
tions to  the  lower  house  of  Parliament  that  met  on  the  12th 
of  November,  by  means  of  circulars  accompanying  the  writs, 
in  which  the  crown,  after  declaring  that  no  "alteration  was 
intended  of  any  man's  possessions,"  directed  the  sheriffs, 
mayors,  and  others  to  admonish  the  voters  to  choose  from 


1  The  marriage  bill  passed  by  the  12th  of  April,  1  Mary,  c.  11. 
3  As  to  Matilda's  attempt  to  secure  that  position,  see  Taylor,  The  Origin 
and  Growth  of  the  English  Constitution,  i.  225  sq. 

*  1  Mary,  sess.  3,  c.  1. 

*  The  last  two  bills  passed  the  commons,  but  were  lost  in  the  upper  house. 


.       EXTERNAL  HISTORY  OF  ENGLISH  LAW  343 

among  themselves  "such  as,  being  eligible  by  order  of  the  laws, 
were  of  wise,  grave,  and  catholic  sort,  such  as  indeed  meant 
the  true  honor  of  God  and  the  prosperity  of  the  common- 
wealth." l     Pole's  attainder  was  promptly  reversed,  and  on 
November  29  both  houses    resolved,  with  scarcely    a   dis- 
senting voice,2  to  reacknowledge  the  papal  supremacy;   and  papai 
they  joined  in  a  formal  petition  *  to  Philip  and  Mary,  pray- 
ing  that  they  would  intercede  with  the  legate  for  a  national  Ushed- 
absolution,  which  he  duly  pronounced  the  next  day.4    Pass- 
ing, then,  from  form  to  substance,  the  new  concordat  thus 
entered  into  between  the  pope  and  the  nation  was  carefully 
embodied  in  an  act  passed    by  the  commons  on  the  4th  of  contents 
January,  1555,  entitled  "An  Act  repealing  all  Articles  and 
Provisions  made  against  the  See  Apostolick  of  Rome  since 
the  twentieth  year  of  King  Henry  the  Eighth,  and  for  the  estab- 
lishment of  all  spiritual  and  ecclesiastical  possessions  and 
hereditaments  conveyed  to  the  laity."  5    By  that  sweeping 
repeal  all  that  remained  of  Henry's  ecclesiastical  legislation 
was  swept  away.     Parliament  was  careful,  however,  to  see 
that  the  consideration  promised  to  the  holders  of  church  Security  to 
property  was  fully  secured.     To  accomplish  that  end  the  church*0 
clergy  were  required  to  state  their  claims  in  a  petition  6  and  Pr°Perty- 
then  to  relinquish  them.    When  Mary  attempted  to  remodel 
the  succession  so  as  to  destroy  the  rights  of  Elizabeth,  the 
houses  refused  to  repeal  the  two  acts  7  upon  which  her  status 
depended  only  so  far  as  they  affected  the  papal  prerogative; 
and  the  only  concession  that  could  be  won  in  favor  of  Philip  Succession 
was  a  regency  bill 8  vesting  in  him  the  guardianship  during  bills. 

1  The  royal  circular  is  printed  in  Burnet,  Collectanea. 

2  As  to  the  two  dissenting  votes  in  the  commons,  see  Strype,  iii.  204 ;    Ep. 
Poli.  v.,  Appendix,  314. 

1  See  Foxe,  Acts  and  Man.  vi.  571. 
4  Ibid.  vi.  572,  as  to  the  form  of  absolution  used. 
•  1  and  2  Philip  and  Mary,  c.  8. 

9  Burnet,  History  of  Reformation,  i.  503.     The  petition  is  printed  in  the  Col- 
lectanea. 

7  28  Hen.  VIII.,  c.  7 ;  35  Hen.  VIII.,  c.  1.         •  1  and  2  Philip  and  Mary,  c.  10. 


344 


THE  SCIENCE  OF  JURISPRUDENCE 


Heresy 

statutes 

revived. 


Gardiner's 
death. 


Papal 
prejudice 
against 
Pole. 


Loyalty  of 
nation  to 
Elizabeth. 


their  minority  of  any  children  the  queen  might  bear  him. 
No  such  spirit,  however,  opposed  the  attempt  now  success- 
fully made,  after  two  failures  in  preceding  parliaments,  to 
revive  the  heresy  statutes  of  the  years  1381,  1400,  and  1414,1 
the  practical  effect  of  which  revival  was  to  do  away  with  the 
necessity  for  a  writ  De  haeretico  comburendo  signed  by  the 
queen.  On  the  16th  of  January,  1555,  Parliament  was  dis- 
solved, and  during  the  next  month,  under  the  authority  of 
the  revived  statutes,  the  fires  of  Smithfield  were  lighted,  and 
the  bloody  drama  began.  Not  until  the  heresy  statutes  had 
been  put  into  vigorous  operation  under  Gardiner's  personal 
supervision 2  did  his  death  in  November  leave  Pole,  after  the 
manner  of  Wolsey,  the  supreme  counselor  in  all  matters  both 
of  church  and  state.  The  end  was  to  be  failure  and  dis- 
appointment. As  viewed  by  the  violent  orthodoxy  of  Paul, 
the  more  liberal  theologians,  led  at  that  time  by  Contarini 
and  Pole,  were  but  little  better  than  heretics.  That  prejudice 
against  Pole  and  his  work  which  Paul  was  induced  to  stifle 
for  a  moment  manifested  itself  in  no  uncertain  terms  in  the 
summer  of  1557,  when  he  revoked  his  legatine  commission,3 
against  the  protest  of  both  queen  and  council,  the  moment 
that  Philip  succeeded  in  dragging  England  into  war  with  the 
pope's  ally  of  France.  Thus  at  enmity  with  the  pope,  for- 
saken by  Philip,  and  hated  by  the  nation,  the  childless  queen, 
who  had  struggled  in  vain  to  make  her  husband  her  successor, 
was  doomed  to  see,  as  she  sank  into  the  grave,  the  tide  of  popu- 
lar enthusiasm  rising  around  Elizabeth,  whose  right  to  the 
throne  every  Parliament  had  protected  against  her  designs, 
and  whom  the  nation  itself  had  guarded  in  the  midst  of  every 

1  5  Rich.  II.  5 ;   2  Hen.  IV.  15 ;   and  2  Hen.  V.  7,  were  revived  by  1  and  2 
Philip  and  Mary,  c.  6. 

2  The  heresy  statutes  were  passed  in  December,  1554,  and  in  the  following 
January  Gardiner  presided  at  the  trial  of  Hooper,  Rogers,  and  others.     Foxe, 
Acts  and  Mon.  vi.  587,  598,  649. 

1  Burnet,  i.   546,    and   Collectanea;   Strype,    Memoirs   of  the  Reformation, 
vi.  476. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  345 

peril  as  its  deliverer.    On  the  17th  of  November,  1558,  in 
the  midst  of  the  depression  that  followed  the  loss  of  Calais,  Mary  died 
Mary  died,  and  a  few  hours  later  Pole,  who  had  toiled  in  vain  berf  isss!" 
by  her  side,  was  no  more. 

16.  With  the  death  of  Mary  ended  the  third  stage  of  the  Elizabeth 
English  Reformation,  the  period  of  reaction  during  which  finai^t- 
the  nation  sought  peace  and  order  at  the  feet  of  the  legiti-  tlement- 
mate  sovereign  even  upon  terms  that  involved  the  surrender 
of  the  entire  fruit  of  the  religious  revolution  Henry  had  in- 
augurated, excepting  only  the  ecclesiastical  property,  whose 
wide  distribution  had  made  it  almost  a  national  endowment. 
The  fourth  and  last  stage  began  with  the  accession  of  Eliza- 
beth, upon  whom  devolved  the  difficult  task  of  formulating 
and  enforcing  a  political  programme  through  which  the  nation 
was  finally  emancipated  from  papal  and  Spanish  domination, 
and  all  parties  and  sects  compelled  to  accept  or  acquiesce  in 
a  system  of  religious  uniformity  resting  upon  parliamentary 
enactments,  and  enforced  with  all  the  despotic  authority 
of  the  conciliar  system.  Utterly  devoid  of  the  religious  en- 
thusiasm that  had  in  turn  driven  Edward  and  Mary  in  oppo- 
site directions,  and  viewing  all  theological  differences  in  a 
purely  political  light,  the  new  queen  came  to  her  task  with 
a  mental  equipment  that  harmonized  perfectly  with  that  of 
the  wise  and  wary  counselor  who  for  forty  years  stood  by 
her  side.  Foremost  among  that  class  of  English  statesmen 
known  as  "politicals,"  who  accepted  the  new  doctrine  that 
every  people  possessed  not  only  the  right  to  determine  for  itself 
the  form  of  the  national  belief,  but  also  the  right  to  enforce 
such  belief  as  a  matter  of  state  policy,  stood  William  Cecil, 
afterward  Lord  Burghley,  whose  one  aim  was  to  restore  order 
and  unity,  and  to  build  up  the  national  power  and  influence 
at  the  sacrifice  of  every  other  consideration.  To  ward  off 
probable  dangers  that  might  have  resulted  from  a  sudden 
breach  with  Spain  and  the  papacy,  the  celebration  of  the 


346 


THE  SCIENCE  OF  JURISPRUDENCE 


First 

Parliament, 
January, 
1559. 


Summary 
of  act  re- 
storing 
royal 
supremacy. 


mass  was  permitted  to  go  on ; 1  a  proclamation  was  issued 
on  the  day  of  Elizabeth's  accession,  forbidding  any  change  or 
innovation  until  consultation  could  be  had  in  Parliament,  which 
met  January  25,  1559.  The  first  act  to  go  upon  the  statute 
book  was  entitled  "An  Act  to  restore  to  the  crown  the  ancient 
jurisdiction  over  the  estate,  ecclesiastical  and  spiritual,  and 
abolishing  all  foreign  powers  repugnant  to  the  same."  2  The 
contents  of  that  act,  wiping  out  the  papal  and  reestablishing 
the  royal  supremacy,  may  be  summarized  as  follows:  (1)  The 
act  of  1  and  2  Philip  and  Mary,  c.  8,  whereby  Henry  VIII. 's 
ecclesiastical  legislation  was  swept  away,  was  repealed,  and 
ten  of  his  acts  were  revived.3  (2)  The  persecuting  statutes  of 
1381,  1400,  and  1414,  which  Mary  had  revived,  were  also  re- 
pealed. (3)  The  ground  being  thus  cleared,  the  papal  suprem- 
acy was  expressly  abolished  in  sweeping  terms  which  made 
its  exercise  as  illegal  as  it  had  been  under  Henry  VIII. ;  and 
penalties  in  three  grades  were  imposed  upon  all  who  should  "  by 
writing,  printing,  teaching,  preaching  .  .  .  maintain  or  defend 
the  authority"  abolished  by  the  act.  (4)  The  provisions  then 
made  for  the  re  establishment  of  the  royal  supremacy  were 
of  an  unpersonal  character,  in  order  to  escape  the  awkward 
dilemma  that  would  have  resulted  from  a  simple  revival 
of  Henry's  Act  of  Supremacy,  and  the  consequent  declara- 
tion of  the  queen  as  the  "Supreme  Head."  4  Instead  of  again 
transferring  the  papal  prerogatives  to  the  sovereign  person- 
ally, it  was  now  declared  that  they  should  "  by  the  authority 
of  this  present  Parliament  be  united  and  annexed  to  the  im- 
perial crown  of  this  realm."  (5)  The  vast  powers  thus  vested 

1  The  queen  was  crowned  with  mass,  January  20,  1559,  and  on  the  25th 
Parliament  was  opened  with  the  old  form,  except  that  the  communion  was  ad- 
ministered in  both  kinds.  The  queen  was  to  commune  as  she  pleased.  Strype, 
Annals,  ii.  397 ;  Burnet,  History  of  Reformation,  i.  565. 

*  1  Eliz,,  c.  1. 

»  23  Hen.  VIII.,  c.  9;  24  Hen.  VIIL,  12;  25  Hen.  VIII.,  cc.  1,  8,  19,  20;  26 
Hen.  VIII.,  c.  14 ;  28  Hen.  VIII.,  c.  16 ;  32  Hen.  VIII.,  c.  28 ;  37  Hen.  VIIL,  c.  17. 

*  As  originally  introduced  in  the  commons,  the  bill  restored  to  the  queen  that 
title.     See  Strype,  Annals,  vol.  i.,  pt.  ii.,  p.  405. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  347 

in  the  crown,  the  sovereign  was  authorized  to  exercise  through 

commissioners,1  who  were  finally  organized  into  the  Court 

of  High  Commission,  which  as  a  corporate  body  undertook 

to  discharge  the  corrective  jurisdiction  of  the  crown  over 

"the   ecclesiastical   state   and   persons,"    clerical   and   lay. 

(6)  In  order  to  make  the  new  supremacy  effective,  an  oath 

of  allegiance  and  supremacy  was  provided,  whose  refusal  dis- 

qualified any  one  from  accepting  any  office  under  the  crown 

or  any  benefice  in  the  church,  while  those  who  were  already 

in  possession  of  such  offices  or  preferments  were  upon  a  refusal 

of  the  oath  liable  to  be  deprived  of  them.2    The  logical  se- 

quence of  the  act  reestablishing  the  royal  supremacy  was  a 

new  Act  of  Uniformity,  restoring  the  devotional  system  as  New  Act  of 

established  during  the  reign  of  Edward  VI.    A  royal  com-  ai£j  °^.  y 

mission,  after  making  only  two  material  alterations,  recom-  church'' 

prayer  book 

mended  the  "low  church"  prayer  book  of  Edward  VI.,  which,  of  Edward 
after  submission  to  the  council,  was  attached  as  a  schedule 
to  the  Act  of  Uniformity  passed  near  the  end  of  the  session, 
and  entitled  "  An  Act  for  the  Uniformity  of  Common  Prayer 
in  the  Church,   and  Administration  of  the  Sacraments."  3 
After  the  enactment  of  laws  declaring  that  firstfruits  and  After 
tenths  should  again  be  vested  in  the  crown,4  that  all  religious 


houses  refounded  by  Mary  should  be  suppressed  and  their  p°rtant 

statutes, 

property  given  to  the  state  ;  5   that  the  queen's  title  to  the 

throne  was  as  good  as  her  father's  or  brother's  had  been,  and 

as  good  as  her  sister's  at  any  time  since  the  passage  of  35 

Henry  VIII.,8  upon  which  Elizabeth's  right  really  rested; 

that  any  attack  upon  the  queen's  title  by  writing  should  be  Parliament 

treason  on  a  first  conviction,7  —  Parliament  was  dissolved 

on  the  8th  of  May. 

'  1  Eliz.,  c.  1,  §§  17,  18.  »  1  Eliz.,  c.  1,  §§  19-29. 

»  1  Eliz.,  c.  2.  *  1  Eliz.,  c.  4.  •  1  Eliz.,  c.  24. 

6  1  Eliz.,  c.  3.     See  Sir  Michael  Foster's  comments  on  the  peculiar  language 
of  that  act,  Crown  Law,  p.  409. 

7  1  Eliz.,  c.  5.     The  act  of  1  and  2  Philip  and  Mary,  c.  10,  was  reenacted  and  ap- 
plied to  Elizabeth.     Attacks  by  words  were  made  treason  on  a  second  conviction. 


348 


THE  SCIENCE  OF  JURISPRUDENCE 


Struggle  of 
Elizabeth 
with  Catho- 
lic party. 


Regulation 
of  worship 
assumed  to 
be  a  state 
function. 


Statutes  to 
punish 
offense  of 
noncon- 
formity. 


Outward 
conformity 
checked  by 
papal  brief. 


By  the  Act  of  Appeals,1  enacted  by  Henry  VIII.,  and  re- 
enacted  by  Elizabeth,2  the  theory  of  the  identity  of  church 
and  state  was  distinctly  embodied  in  terms  that  declared  that 
"both  their  authorities  and  jurisdictions  do  conjoin  together, 
in  the  due  administration  of  justice,  the  one  to  help  the  other." 
Proceeding  upon  that  basis,  the  ecclesiastical  legislation  of 
Elizabeth  assumed  that  the  regulation  of  religious  worship 
was  a  state  function  to  be  exercised  through  Parliament,  and 
that  all  subjects  who  failed  to  accept  or  comply  with  the  forms 
thus  provided  should  be  punished  by  the  law  of  the  state. 
It  was  further  assumed  that  to  acknowledge  the  right  of  the 
pope  to  interfere  with  such  legislation  was  a  step  toward 
treason,  and  that  to  act  by  this  command  in  opposition  to 
the  law  of  the  land  was  actual  treason.3  Upon  these  prin- 
ciples were  framed  the  acts  of  Elizabeth  designed  to  punish 
the  offense  of  nonconformity  to  the  Established  Church, 
some  of  which  were  intended  to  apply  to  both  of  the  resisting 
factions,  while  others  were  designed  for  special  application 
to  Roman  Catholics,  or  to  Protestant  dissenters,  in  order  to 
meet  special  emergencies.  At  the  outset  the  worldly  and  tol- 
erant spirit  animating  both  Elizabeth  and  Cecil,  which  de- 
manded only  an  outward  conformity  to  the  church  establish- 
ment, refused  to  enter  the  sacred  realm  of  individual  opinion. 
Upon  the  part  of  English  Catholics  a  disposition  was  mani- 
fested to  meet  that  tolerant  policy  by  outward  conformity, 
which  continued  until  it  was  suddenly  checked  in  August, 
1562,  by  a  brief  from  the  pope,  forbidding  their  attendance 
at  church,  and  denouncing  their  joining  in  the  common  prayer 
as  schismatic.  The  sharp  assault  thus  made  upon  Eliza- 
beth's hopeful  policy  was  promptly  met  by  a  memorable 
act 4  that  laid  the  foundation  for  a  system  of  legal  oppression 

1  24  Hen.  VIII.,  c.  12.     See  Amos,  Reform.  Statutes,  pp.  256-262. 

3  1  Eliz.,  c.  1.  *  See  Stephen,  History  of  the  Criminal  Law,  ii.  477. 

4  5  Eliz.,  c.  1,  and  entitled  "for  the  assurance  of  the  queen's  royal  power  over 
all  estates  and  subjects  within  her  dominions." 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  349 

which  English  Catholics  were  forced  to  endure  for  nearly 
two  centuries  and  a  half.     It  provided  for  a  commission  of  Thecoun- 
bishops  and  others  to  be  appointed  by  the  crown,  who  were 
authorized  to  tender  the  Oath  of  Supremacy  (1)  to  all  members 
of  the  House  of  Commons,  to  all  who  had  ever  been  admitted 
to  holy  orders  or  to  degrees  in  the  universities,  to  school- 
masters, private  tutors,  barristers,  and  attorneys,  as  well  as 
to  all  other  persons  engaged  in  the  execution  of  the  law; 
(2)  to  all  who  should  openly  disapprove  of  the  established 
worship,  or  who  should  celebrate  or  attend  any  mass  said 
in   private.    When   Bonner,   the   deprived   and   imprisoned 
bishop  of  London,  presented  the  question  that  Home,  bishop 
of  Winchester,  who  tendered  him  the  oath,  was  not  a  bishop,1 
the  controversy  as  to  the  status  of  the  new  episcopate  was  Legal 
cut  short  by  an  act 2  passed  in  the  Parliament  of  1566,  "de-  ^ l^op 
claring  the  manner  of  making  bishops  and  archbishops  in  challenged, 
this  kingdom,"  employed  since  the  queen's  accession,  "to  be 
good,  perfect,  and  lawful."    When  in  1570  Pius  V.  published 
the  famous  bull  of  excommunication  and  deposition,3  Parlia-  Responses 
ment  replied  in  two  statutes  passed  for  the  queen's  protection ;  deposition, 
the  first 4  to  prohibit  the  publication  of  papal  bulls ;  the  sec- 
ond5 to  punish  those  who  should  claim  the  crown  during  the 
queen's  life.     During  the  ten  years  that  followed  that  enact- 
ment, existing  laws  were  enforced  with  such  severity  against 
the  Catholic  population  that  many  were  forced  to  seek  refuge 
beyond  sea,  while  the  Catholic  priesthood,  thinned  by  death 
and  unrecruited  by  fresh  ordinations,  threatened  to  become 
extinct.    To  that  sad  condition  of  things  were  added  the  fresh 

1  "After  a  long  argument  in  Serjeants'  Inn,  all  the  judges  agreed  that  Bonner 
had  a  right  to  an  inquiry  before  a  jury  as  to  the  matter  of  fact,  whether  Home, 
at  the  time  when  he  offered  the  oath,  was  or  was  not  a  bishop  in  the  eye  of  the 
law."  Lingard,  vol.  vi.,  Appendix,  note  6,  p.  668. 

3  8  Eliz.,  c.l.  The  main  purpose  of  the  act  was  to  legalize  retrospectively  the 
Edwardian  Ordinal  used  at  the  consecration  of  Parker  and  his  associates. 

*  Printed  in  Burnet,  Collectanea. 

«  13  Eliz.,  c.  2.  •  13  Eliz.,  c.  1. 


350 


THE  SCIENCE  OF  JURISPRUDENCE 


Struggle  of 
Elizabeth 
with  the 
Puritan 
party. 

Its 

origin. 


Driven  to 


uhed. 


cruelties  resulting  from  the  act  '  of  1581,  directed  against  the 
Jesuit  invasion,  under  which  Champion  was  tortured  2  and 
convicted  ;  s  and  the  act  of  1539,  increasing  the  penalties  of 
recusancy.4 

As  the  strict  enforcement  of  the  Acts  of  Supremacy  pre- 
vented for  a  time  the  formation  of  sects  outside  of  the  state 
church,  the  first  opposition  to  the  established  system  came 
from  within,  from  a  church  party  which  about  the  year  1564 
was  designated  as  Puritan,  a  term  so  extended  a  few  years 
later  as  to  embrace  many  who  had  then  separated  from  the 
Church  of  England.  In  1565  it  was  that  the  first  coercive 
measures  were  taken  against  the  Puritan  sympathizers  among 
the  clergy  who  had  for  some  time,  with  the  connivance  of 
some  of  the  bishops,  ventured  to  deviate  from  the  uniformity 
established  by  law  by  refusing  to  observe  many  ceremonies 
they  deemed  either  as  superfluous  or  superstitious.  To 
suppress  such  irregularities,  the  archbishop  in  the  year  last 
named  put  forward,  without  the  royal  sanction  formally 
given,  a  set  of  regulations  for  the  discipline  of  the  clergy 
called  "  Avertisements  "  ;  and  through  the  authority  of  the 
ecclesiastical  commission  many  of  the  leading  Puritan  divines 
who  still  refused  to  conform  were  either  deprived  of  their 
preferments  or  suspended  from  the  ministry  under  threat 
of  deprivation.  Thus  it  was  that  the  Puritans  were  driven 
to  the  open  schism  manifested  by  their  withdrawal  from  the 
state  church,  and  by  the  establishment  of  separate  conventi- 
cles. In  June,  1567,  an  assembly  of  that  character  which  had 
met  in  Plummer's  Hall  in  London  was  dispersed,  and  out  of 
an  hundred  or  more  brought  before  the  Court  of  High  Com- 

1  23  Eliz.,  c.  1,  "to  retain  the  queen's  majesty's  subjects  in  their  true  obedi- 
ence." 

2  As  to  the  history  of  torture  in  England,  see  Taylor,  The  Origin  and  Growth 
of  the  English  Constitution,  ii.  166,  note  1. 

»  State  Trials,  i.  1049,  1072;   Bridgewater,  pp.  219,  304. 

4  35  Eliz.,  c.  2.  As  to  its  effects,  see  Stephen,  History  of  the  Criminal  Law  of 
England,  ii.  486. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  351 

mission,  thirty  or  more  were  imprisoned,  the  first  punish- 
ment to  which  Protestant  dissenters  were  actually  subjected. 

In  1583  Archbishop  Whitgift,  a  leader  of  the  orthodox  whitgift 
school,  began,  with  the  aid  of  the  Court  of  High  Commis-  hTghcoin- 
sion  permanently  established  not  long  after  his  consecration,  nU8sion8- 
that  systematic  attempt  to  punish  such  of  the  clergy  as  were 
imbued  with  Puritan  principles  which  finally  resulted  in  the 
bitter  assault  upon  the  bishops  embodied  in  the  series  of  Mar-Prelate 
pamphlets  published  under  the  pseudonym  of  Martin  Mar- 
Prelate.1    Under  Elizabeth's  Act  of  Supremacy  five  high 
commissions 2  were  issued  during  the  first  twenty  years  of 
her  reign,  and  then  in  December,  1583,  another  followed,3 
creating    the  permanent  body  afterward  known    as  "The  Permanent 
Court  of  High  Commission  in  Causes  Ecclesiastical."    By  H 
the  terms  of  the  instrument  the  forty-four  commissioners  nussion- 
appointed  by  it,  twelve  being  bishops  and  three  a  quorum, 
were  authorized  "to  inquire  from  time  to  time  during  our 
pleasure,  as  well  by  the  oaths  of  twelve  good  and  lawful  men, 
as  also  by  witnesses  and  all  other  ways  and  means  you  can 
devise,  of  all  offenses,"  against  the  Acts  of  Supremacy  and 
Uniformity,   and  especially  as  to  "all  heretical  opinions, 
seditious   books,   contempts,   conspiracies,   false   rumors   or 
talks,  slanderous  words,  and  sayings,"  and  the  like.    While 
a  statutory  limitation,  in  the  form  of  a  negative  provision 4 
or  definition,  was  imposed  in  cases  of  heresy,  the  commis- 
sioners were  authorized  to  administer  the  hated  ex  officio  EX 
oath,  and  to  punish  offenders  "by  fine,  imprisonment,  cen-  oath' 
sures  of  the  church,  or  by  all  or  any  of  said  ways,"  but  not 
by  death.    The  enforcement  of  such  vast  powers  through  in- 
quisitorial means  naturally  excited  resistance,  and  an  appeal 

1  The  first  of  these  were  published  in  1588.  Strype,  Whitgift,  p.  288.  For  a 
full  account  of  the  whole  series,  see  Maskell,  History  of  the  Martin  Mar-Prelate 
Controversy,  1845. 

a  Neal,  History  of  the  Puritans,  i.  330. 

*  The  text  is  published  in  Neal,  i.  330-332.  «  f  36. 


352  THE  SCIENCE  OF  JURISPRUDENCE 

to  the  courts  of  common  law  to  restrain  the  commissioners 

Conflict        within  bounds.     In  the  course  of  the  legal  contest  recorded 

of  common    m  Coke's  Reports,  the  general  nature  of  the  ecclesiastical 

law,1  the  right  of  the  commissioners  to  administer  the  ex 

officio  oath,2  and  the  right  of  the  law  courts  to  restrain  by 

prohibition  and  to  deliver  by  habeas  corpus  *  persons  illegally 

imprisoned  by  the  High  Commission,   were  learnedly  ex- 

pounded.   And  yet,  in  spite  of  such  opposition,  the  powers 

of  the  court  continued  practically  unimpaired  during  the 

reigns  of  Elizabeth  and  James,  and  down  to  the  sixteenth  of 

Abolished     Charles  L,  when  it  was  abolished  by  the  Long  Parliament  in 

Parliament.  an  act  *  declaring  that  it  had  exercised  throughout  a  juris- 

diction never  conferred  by  the  statute  creating  it. 
Constitu-          However  potent   an  entity  the   High  Commission  may 
council  in*    have  been,  it  must  not  be  forgotten  that  it  was  simply  an 


FT*  dbyh°f  aSencv  °f  ^e  concn<iar  system,  to  whose  supervision  it  was 
subject.  From  the  picture  of  the  council  contained  in  the 
regulations  drawn  up  by  Edward  VI.  in  1553,5  it  appears 
that  the  forty  members  of  whom  it  was  then  composed, 

Divided  twenty-two  being  commoners,  were  divided  into  five  com- 
mittees,  to  each  of  which  was  assigned  a  definite  class  of 
official  duties.  The  essence  of  the  arrangement  was  that 
everything  should  be  brought  under  the  royal  eye  by  the 
secretary  as  the  channel  of  communication  between  the  coun- 
cilors and  the  king,  who  was  all  in  all.  In  the  reign  of  Eliza- 
beth, Cecil  as  secretary  stands  out  as  the  principal  officer 
of  the  government,  and  in  1601  the  transition  was  completed 
when,  for  the  first  time,  the  title  of  "our  principal  secretary 

1  See  the  great  case  of  Cawdrey,  with  the  heading  De  jure  regis  ecclesiaatico, 
5  Rep.  I.,  1.  iii.  xv.,  ed.  of  1826. 

*  12  Rep.  19,  iii.  217  ;    12  Rep.  26,  vi.  227. 

*  Roper's  Case,  12  Rep.  47,  vi.  258;  Chamley's  Case,  12  Rep.  82,  vi.  309; 
Fuller's  Case,  12  Rep.,  p.  750. 

4  16  Chas.  I.,  c.  11,  1640  A.D.  See  its  Act  Books,  lately  printed  by  Master  of 
the  Rolls  (in  the  Calendar  of  State  Papers,  Domestic  Series,  1633-1640),  during 
the  last  seven  years  of  its  existence. 

'  See  Burnet,  History  of  Reformation,  i.  448. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  353 

of  estate"  l  was  given  to  his  son.    When  the  press,  as  an  Robert 
instrument  for  the  expression  of  public  opinion,  came  into  cipaisecre- 
prominence  during  the  reign  of  Henry  VIII.,  the  council,  ^^f,, 
sitting  as  a  law  court  in  the  "Starred  Chamber,"  was  quick 
to  assume  over  it  a  control  which  soon  ripened  into  a  repres- 
sive system.2     At  the  instigation  of  Whitgift  the  press  was 
subjected  in  1585  to  a  regular  censorship  by  ordinances  of  Censorship 
the  star  chamber,  which  undertook  its  complete  regulation  press® 
in  order  to  prevent  the  "enormities  and  abuses  of  disorderly 
persons  professing  the  art  of  printing  and  selling  books."  3 
As  an  administrative  body  the  council  exercised  a  multitude  Asanad- 
of  functions,  the  chief  of  which  related  to  the  management  tive^body. 
of  the  finances,  the  regulation  of  commerce,  including  the 
intercourse  with  foreign  merchants,  the  supervision  of  the 
church,  the  preservation  of  the  peace,  as  well  as  to  all  con- 
tested matters  involved  in  the  administration  of  the  colonies. 
Such  was  the  scope  of  the  Tudor  system  of  government  by 
councils  as  developed  before  the  close  of  the  reign  of  Eliza-  center  of 
beth.    As  stated  heretofore,  without  any  change  whatever  in 
the  outward  form  of  the  constitution,  the  center  of  gravity 
of  the  state  shifted  from  the  Parliament  to  the  council,  as  the  council 
result  of  the  collapse  of  the  estate  system  at  the  close  of  the 
civil  war.     The  time  had  now  come  for  the  beginning  of  a 
counter  revolution  through  which  normal  conditions  were  to 


be  reestablished  and  the  estate  system  revivified  by  the  new  ?fn5e  and 

Refor- 

conception  of  political  and  religious  liberty  born  of  the  mation. 

1  "It  needed  but  one  step  more  for  them  to  pass  from  mere  secretaries  into 
Secretaries  of  State."     Dicey,  p.  84.     As  to  the  origin  of  that  office,  see  Judg- 
ment of  Camden,  C.J.,  in  Entick  v.  Carrington,  19  St.  Tr.  1030  (case  as  to 
general  warrants)  ;   Nicholas,  vi.  117  aq. 

2  The  censorship  of  the  press  was  first  assumed  in  England,  as  in  the  rest  of 
Europe,  by  the  church,  which  suffered  nothing  to  be  published  without  the  im- 
primatur of  the  licenser.     After  the  Reformation  that  high  function  passed  from 
church  to  state,  and  was  exercised  as  a    royal  prerogative  through  the  star 
chamber. 

*  Strype,  Whitgift,  p.  222,  and  Appendix,  94.  For  the  order  made  by  the  star 
chamber  in  July,  1637,  for  the  better  regulation  of  the  press,  see  Rushworth, 
vol.  iii.,  Appendix,  306. 

2A 


354  THE  SCIENCE  OF  JURISPRUDENCE 

Renaissance  and  the  Reformation.  Of  the  broader  and 
deeper  stream  of  philosophical  skepticism,  of  historical  re- 
search into  the  entire  past  of  man  which  the  English  Re- 
naissance set  in  motion,  the  English  Reformation  finally 
became  the  channel  into  which,  through  the  greater  intensity 
of  the  religious  impulse,  the  force  of  the  larger  movement 
was  narrowed  and  concentrated.  In  that  way  the  ever 
widening  and  progressive  middle  class  that  dominated  the 
House  of  Commons  when  Elizabeth's  reign  began  were  im- 
Entered  bued  with  a  new  spirit  of  liberty  which  impelled  each  sov- 
dlsses!dc  '  ereign  Christian  man,  armed  with  the  inalienable  right  of 
private  judgment,  to  challenge  all  claims  upon  his  civil  and 
political  obedience,  whenever  such  claims  were  rejected  by 
the  supreme  oracle  supposed  to  be  enthroned  in  each  indi- 
change  vidual  Christian  conscience.  As  early  as  the  reign  of  Edward 
VI.  the  coming  change  began  to  be  felt  through  the  disappear- 
ance of  that  slavish  spirit  of  obedience  which  had  charac- 
terized the  Parliaments  of  Henry  VIII.  To  overcome  the 
opposition  to  its  policy  that  thus  arose  out  of  the  reviving 
spirit  of  independence,  the  crown  was  driven  to  adopt  a  sys- 
tem for  the  "management"  of  the  House  of  Commons  that 
consisted  not  only  of  its  packing  with  royal  nominees  through 
a  direct  interference  with  elections,1  but  also  of  the  creation 
of  new  boroughs,  generally  small  towns  or  hamlets  of  no 
importance,  whose  constituencies  the  crown  could  dominate. 
In  that  way  under  Edward  VI.  were  created  or  restored 
twenty-two  boroughs ; 2  under  Mary,  fourteen ;  while  Eliza- 
beth in  the  same  way  increased  the  number  of  the  house 

1  See  first  draft  of  a  circular  in  British  Museum,  Lansdowne  MSS.,  p.  3 ;  letter 
to  a  candidate,  Sir  P.  Hoby,  Harleian  MSS.,  p.  523 ;  Froude,  History  of  England, 
v.  125,  126 ;  Strype,  ii.  394.  When  Froude  refers  to  this  as  the  first  attempt 
to  make  a  nomination  Parliament,  he  forgets  that  later  on  (v.  432)  he  admits 
that  the  circulars  sent  out  by  Mary  to  influence  the  elections  for  the  Parliament 
that  met  in  November,  1554,  "were  copied  from  a  form  which  had  been  in  use 
under  Henry  VII." 

a  While  some  of  these  were  places  of  note,  at  least  half  of  the  number,  includ- 
ing seven  in  Cornwall,  were  of  no  kind  of  importance. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  355 

by  the  addition  of  sixty-two  members.    And  yet,  in  spite  of 

all  such  expedients,  the  Puritan  opposition  to  the  Tudor 

system,  that  grew  stronger  and  stronger  as  Elizabeth's  reign 

advanced,  not  only  reasserted  successfully  many  vitally  im- 

portant parliamentary  privileges,  but  also  maintained  to  a  Powers  of 

marked  extent  the  right  of  the  house  to  deal  with  the  three  re^ved!en 

great  questions  touching  the  succession,  the  church,  and  the 

regulation  of  trade,  claimed  by  the  Tudor  sovereigns  as  within 

the  exclusive  province  of  the  king  in  council.1    The  result  of 

the  famous  attack  made  in  1601  upon  the  monopolies  was  a  Monopolies. 

message  from  Elizabeth  to  the  house,  in  which  she  promised 

that  as  to  such  patents  as  were  "grievous  to  her  subjects, 

some  should  be  presently  repealed,  some  superseded,  and 

none  put  in  execution,  but  such  as  should  first  have  a  trial, 

according  to  the  law,  for  the  good  of  the  people."  2    Thus 

the  conciliar  system  lost  the  first  battle   in   that  prolonged  Beginning 

struggle  through  which  was  finally  reestablished  the  all-  conflict. 

important  constitutional  principle  that  the  supreme  powers 

of  the  state  are  vested  not  in  the  king  in  council,  but  in  the 

king  in  Parliament. 

17.  Robert  Cecil,  who  succeeded  his  father  as  Elizabeth's  The  stuarta 
chief   councilor,  had  secretly  pledged  himself   to  James  in  puritan 


obedience  to  the  popular  will,3  and  within  a  few  hours  after 
the  queen's  death  the  council  proclaimed  his  succession  in 
the  midst  of  a  general  approval  that  coolly  ignored  not  only 
the  Suffolk  claim,  but  a  dozen  more  4  of  a  less  plausible  char- 
acter.  To  the  Stuarts  the  conciliar  system  of  the  Tudors 
passed  unimpaired  just  at  the  moment  when  that  system  ummPaired- 

1  For  details  and  authorities,  see  Taylor,  The  Origin  and  Growth  of  the  English 
Constitution,  ii.  203  sq. 

3  For  the  queen  's  reply  to  an  address  of  thanks  from  the  house,  see  D  'Ewes, 
ii.  644,  654  ;  Townshend,  pp.  224,  230,  248  ;  Parliamentary  History,  iv.  480. 

8  See  Bruce,  Correspondence  of  James  VI.  with  Sir  R.  Cecil  and  others. 

4  It  is  said  that  as  many  as  fourteen  claimants  existed.     See  Deolman  (Per- 
sons), Conference  on  the  Succession.     The  bulk  of  such  claimants  derived  their 
rights  from  sovereigns  who  reigned  prior  to  the  accession  of  the  House  of  Tudor, 
such,  for  instance,  as  Isabella,  the  eldest  daughter  of  Philip  II. 


356 


THE  SCIENCE  OF  JURISPRUDENCE 


Conflict 
with  parlia- 
mentary 
system. 


Parliamen- 
tary privi- 
leges aa- 

serted. 


was  becoming  unequal  to  the  task  of  governing  a  nation 
which  had  already  entered  upon  a  career  of  marvelous  de- 
velopment. James  and  Charles,  so  far  from  accepting  the 
mission  of  reform  thus  naturally  arising  out  of  changed  con- 
ditions, not  only  continued  the  system  of  government  by 
councils  which  the  Tudors  had  bequeathed  to  them,  but 
attempted  to  intensify  its  absolutism  both  in  theory  and 
practice.  What  the  constitution  of  the  council  was  in  the 
days  of  Elizabeth  it  remained  down  to  the  meeting  of  the 
Long  Parliament,  and  during  that  period  its  powers  were 
stretched  to  a  greater  extent  than  had  ever  been  known 
before.  Between  the  parliamentary  system,  animated  by 
the  new  spirit  of  liberty  that  had  entered  into  the  commons, 
and  the  system  of  government  by  councils,  animated  by  the 
new  spirit  of  absolutism  derived  from  James,  a  conflict  was 
inevitable.  That  conflict  was  a  long  and  bitter  one.  Not 
until  after  the  completion  of  two  revolutions  was  the  English 
nation  able  finally  to  subject  the  conciliar  system,  as  organ- 
ized by  the  Tudors  and  enforced  by  the  Stuarts,  to  the  Par- 
liamentary system  as  it  exists  in  modern  times.  In  James's 
first  Parliament,  which  met  in  March,  1604,  after  his  speech 
rebuking  both  Puritans  and  Catholics,  the  commons,  in  an 
angry  mood,  asserted  their  exclusive  right  to  try  contested 
elections,  in  the  cases  of  Goodwin  and  Fortescue,1  and  vindi- 
cated the  freedom  of  members  from  arrest  in  the  case  of 
Shirley.3  Having  thus  maintained  its  privileges,  the  house 
addressed  itself  to  the  consideration  of  purveyance  and 
wardship,  with  a  view  to  their  abolition,  and  to  the  projected 
union  of  England  and  Scotland.*  Shortly  after  the  proroga- 

1  Taylor,  The  Origin  and  Grotrth  of  the  English  Constitution,  I.  530  a?. 

1  Common*'  Journal,  patnm,  from  March  22  to  May  22,  i.  149-222.  The 
great  case  of  Ferrers  occurred  in  1542  and  rests  upon  the  authority  of  Holins- 
hed  (i.  824),  and  not  upon  parliamentary  records.  See  May,  Parliamentary 
Practice,  p.  132. 

*  The  king  said  that  consummation  would  enable  him  to  leave  at  his  death 
"one  worship  of  God,  one  kingdom  entirely  governed,  one  uniformity  of  law." 
Common*'  Journal,  i.  171. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  357 

tion  James  assumed  the  title  of  King  of  Great  Britain,  to 
which  Parliament  had  refused  its  assent,  and  proceeded  to  Persecution 
sharpen  the  persecution  of  the  Puritan  clergy  l  by  demanding 
of  them  the  more  rigid  conformity  prescribed  by  the  canons  Ucs' 
of  1604  adopted  at  the  instigation  of  Bancroft,  now  promoted 
to  the  vacant  see  of  Canterbury.    Sharper  persecution  of  the 
Catholics  resulted  in  the  Gunpowder  Plot,  and  the  adjourn-  Gun- 
ment  of  the  second  session  of  Parliament,  in  which  occurred  p^. e 
the  conflict  between  the  houses  themselves,2  out  of  which 
grew  the  rule  that  a  bill  cannot  be  twice  proposed  in  the  same 
session.    Then  it  was  that  the  house  demanded  in  a  petition 
of  grievances  *  that  neither  the  royal  impost  on  currants,  nor 
that  laid  upon  tobacco  by  James,  should  be  levied,  because 
no  such  duties  could  be  legally  demanded  without  parlia- 
mentary sanction.    When  Bate  put  that  contention  to  the  Bate's 
test  in  the  exchequer  chamber  *  there  was  an  unanimous 
judgment  against  him,  even  Coke  admitting  that  the  crown 
had  the  right  in  that  particular  case.*    After  a  failure  in  the 
third  session  to  settle  the  famous  controversy  as  to  the 
nationality  of  the  post-nati,  —  as  those  were  called  who  were  Th« 
born  in  Scotland  after  the  king's  accession,  —  the  question  po" 
of  law  passed  to  the  courts,  where,  alter  argument  before  the 
chancellor  and  the  twelve  judges  in  the  exchequer  chamber, 
it  was  held  by  all,  except  two,  that  Colvill  (or  Calvin)  was  no 
alien;  that  allegiance  is  the  obedience  due  to  the  sovereign; 
and  persons  born  in  the  allegiance  of  the  king  are  his  natural 
subjects,  regardless  of  locality.    As  allegiance  was  due  by 
both  kingdoms  to  one  sovereign,  it  was  held  for  that  reason 

>  See  Wilkins,  Concilia,  iv.  4O8,  409. 

1  The  lords  peremptorily  rejected  a  bill  sent  up  to  them  by  the  commons 
shortly  after  they  had  refused  their  assent  to  a  previous  bill  on  the  same  subject. 
Parliamentary  History  Journal*,  pp.  274,  278,  etc. 

«  For  the  text,  aw  Petyfs  Ju*  Partiamentariw*.  Cf.  Parliamentary  Debate 
in  1610,  p.  123. 

•  MirhaHmas  Term,  4  James  L ;  State  Trial*,  ii.  4O4. 

•  Rep.  xii.,  p.  33. 


358 


THE  SCIENCE  OF  JURISPRUDENCE 


The 

"Great 

Contract." 


Refusal  to 
redress  ec- 
clesiastical 
grievances. 


Judges 
asked  to 
define 
ordaining 
power. 


that  internaturalization  followed,  although  each  kingdom  had 
its  own  Parliament  and  its  own  laws.1 

To  the  fourth  session,2  which  began  in  February,  1610, 
Cecil,  in  the  hope  of  closing  the  ever  widening  breach  between 
king  and  Parliament,  submitted  a  proposal  called  the  "  Great 
Contract,"  that  embodied  an  offer  in  general  terms  to  redress 
all  just  grievances,  provided  the  house  consent  to  grant  in 
return  a  sum  sufficient  to  pay  the  king's  debts,  and  to  pro- 
vide a  permanent  support  of  £200,000  a  year.  A  compromise 
might  have  been  reached,  and  "just  grievances"  defined,  had 
it  not  been  for  the  king's  refusal  to  concede  the  demands 
of  the  commons  as  to  ecclesiastical  grievances.  To  the  re- 
quests that  the  deprived  ministers  should  be  allowed  to  preach 
upon  certain  conditions,  that  the  old  grievances  of  pluralities 
and  non-residence  should  be  removed,  that  the  conflict  of 
jurisdiction  that  had  arisen  out  of  the  efforts  made  by  the 
court  of  king's  bench  to  limit  the  powers  of  the  High  Com- 
mission by  writs  of  prohibitions  should  be  settled  against  the 
latter  by  restraining  statutes,  —  the  house  could  obtain  no 
satisfactory  responses  whatever.3  Under  such  circumstances 
Parliament  was  prorogued  on  the  23d  of  July.  Two  months 
later  the  king  summoned  Coke,  the  chief  justice  of  the  king's 
bench,  to  appear  before  the  council,  where  he  was  asked,  first, 
whether  the  king  could  by  proclamation  prohibit  the  building 
of  new  houses  in  London  in  order  to  check  the  overgrowth 
of  that  city ;  second,  whether  he  could  in  the  same  way  forbid 
the  manufacture  of  starch  from  wheat,  in  order  to  prevent 
the  diminution  of  the  supply  for  purposes  of  food.  After 
conference  with  three  of  his  brethren,  the  opinion  was  ex- 

1  Calvin's  case,  State  Trials,  ii.  559,  7  Jac.  I.  1608.  See  also  notes  of  the  judg- 
ments in  State  Papers,  Dom.  xxx.  40,  and  xxxiv.  10.  Cf.  Denman,  Broom's 
Constitutional  Law,  1885,  pp.  4—59. 

9  For  the  proceedings  of  this  session,  see  Parliamentary  Debates  in  1610, 
pp.  126-145. 

'  Such  was  the  nature  of  the  king's  answer  read  in  the  lords  at  the  prorogation, 
in  answer  to  the  memorial  there  presented  on  the  21st. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  359 

pressed  "that  while  a  proclamation  cannot  make  a  law,  it 
can  add  force  to  a  law  already  made ;  that  (to  use  the  words 
of  judges  living  in  the  reign  of  Mary)  'the  king  may  make  a 
proclamation  quod  terrorum  populi,  to  put  them  in  fear  of  his 
displeasure,  but  not  to  impose  any  fine,  forfeiture,  or  im- 
prisonment; for  no  proclamation  can  make  a  new  law,  but 
only  confirm  and  ratify  an  ancient  one.'  "  1  In  the  fifth  and 
last  session,  after  another  fruitless  effort  to  agree  upon  the 
terms  of  the  "Great  Contract,"  James,  angered  by  a  state  of 
things  in  which  the  commons,  while  denouncing  his  Scotch 
favorites,  withheld  all  supply,  dissolved  Parliament  on  Dissolution 
February  9,  1611,  after  an  existence  of  nearly  seven  years.  ^  ion"""7 
As  the  members  returned  to  their  homes,  the  ominous  news 
was  carried  to  every  borough  and  to  every  shire  that  the 
monarchy  had  broken  with  the  great  council  of  the  realm. 

James's  second  Parliament,  which  met  in  April,  1614,  at  "TheAd- 
once  emphasized  the  fact  that  it  had  inherited  the  spirit  of  ment.'*ri 
its  predecessor  by  rejecting  as  inadequate  the  unimportant 
concessions  offered  in  the  king's  speech,  and  by  announcing 
that  no  supply  could  be  granted  until  a  settlement  should 
first  be  made  of  the  open  questions  involved  in  the  imposi-  subject  of 
tions,  the  ecclesiastical  grievances,  and  in  the  monopolies,  revived!01 
After  the  lords  had  declined  a  conference2  upon  the  first 
subject,  the  judges  refused  at  their  request  to  give  an  opin- 
ion upon  the  legal  questions  involved  in  it  extra  judicially.3 
After  dealing  with  the  question  of  privilege  involved  in  Bishop 
Neile's  case,4  the  houses  were  dissolved,  after  a  session  of  a 
little  more  than  two  months,  within  which  time  not  a  single 
bill  received  the  royal  assent,  a  circumstance  out  of  which 
arose  the  nickname  of  "The  Addled  Parliament."5    Exas- 

1  That  famous  judgment  was  delivered  by  Coke  and  three  other  judges 
(12  Rep.  74).  It  was  brought  about  by  the  remonstrances  of  the  commons 
upon  those  subjects. 

3  Commons'  Journal,  ii.  707,  708;   Petyt,  Jus  Parliamentarium,  p.  340. 

*  Lords'  Journal,  ii.  706.  «  Ibid.  ii.  709,  713. 

•  Court  and  Times,  i.  320,  323. 


360 


THE  SCIENCE  OF  JURISPRUDENCE 


Revival  of 
all  forms  of 
royal  taxa- 
tion. 


Benevo- 
lence 
resisted 
by  Oliver 
St.  John. 


Prosecution 
of  Peacham. 


Coke's 

courageous 

responses. 


perated  by  another  failure  to  obtain  supplies,  the  king  now 
resolved  to  live  without  parliaments,  a  resolve  in  which  he 
persevered  for  nearly  seven  years.  During  that  interval 
every  resource  of  the  conciliar  system  was  employed  to  raise 
by  means  of  the  prerogative  alone  sums  sufficient  to  supply 
the  ever  increasing  wants  of  the  crown,  and  to  strike  down 
by  means  of  its  despotic  power  every  individual  who  dared 
to  oppose  the  royal  will.  Thus  were  revived  all  of  those 
illegitimate  forms  of  taxation  branded  as  unlawful  by  the 
parliaments  of  the  fourteenth  and  fifteenth  centuries.  When 
James  appealed  for  a  general  and  voluntary  contribution, 
Oliver  St.  John  not  only  refused  to  subscribe,  but  wrote  a 
letter  in  which  he  denounced  the  benevolence  as  contrary  to 
the  Great  Charter,  the  act  of  Richard  III.,  and  the  king's 
coronation  oath.  During  his  prosecution  in  the  star  cham- 
ber, resulting  in  a  great  fine  and  imprisonment,1  Attorney- 
General  Bacon  maintained  that  the  benevolence  in  question 
was  really  a  free  gift,  while  Coke  so  far  agreed  with  him 
as  to  take  back  his  former  opinion  against  the  illegality 
of  benevolences  demanded  by  letters  under  the  great  seal.2 
When  Peacham,  the  first  to  be  convicted  of  libel  in  the  High 
Commission,  was  threatened  with  a  prosecution  for  treason, 
while  three  of  the  puisne  judges  permitted  themselves  to  be 
consulted  separately  on  the  law  point  involved,  Chief  Justice 
Coke  resisted  because  "such  particular  and  auricular  taking 
of  opinions  is  not  according  to  the  custom  of  the  realm."  3 
Although  the  tenure  of  the  judges  rested  on  the  pleasure  of 
the  sovereign,  no  one  of  them  had  been  dismissed  for  politi- 
cal reasons  since  the  accession  of  Elizabeth.4  When  in  the 
"Case  of  Commendams"  Coke  was  asked  whether  in  a  like 

1  State  Trials,  ii.  889. 

3  Bacon,  Letters  and  Life,  v.  136.     To  his  last  opinion  Coke  adhered  in  his 
reports.     12  Rep.  119. 

'  Bacon  to  the  king,  January  27,  Letters  and  Life,  v.  100. 

4  Gardiner,  History  of  England,  ii.  8.     As  to  the  case  of  Chief  Baron  Man  wood 
in  1572,  see  Foss,  Judges,  v.  321. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  361 

case  in  future  he  would  consult  with  the  king  before  rendering 
judgment,  in  the  event  his  majesty  should  consider  himself 
interested,  nothing  more  could  be  drawn  from  him  than  the 
statement  that  when  such  a  case  should  arise,  he  would  do 
what  was  fitting  for  a  judge  to  do.1    For  that  declaration, 
Coke,  after  suspension  from  office  and  censure  by  the  council,  Dismissed 
was  dismissed  from  the  chief  justiceship  in  November,  1616.2  JlLtice. 
Bacon,    who   had   attached   himself   to   Buckingham,    was 
appointed  lord  chancellor  in  1618.3 

When  James's  third  Parliament  met  in  January,  1621,  there  impeach- 
had  not   been  a  parliamentary  impeachment  since  that  of  revived. 
Lord  Stanley  in  1459,  a  period  of  one  hundred  and  sixty-two 
years.4    A  new  beginning  was  now  made  in  the  proceedings 
against  Mitchell 5  and  Mompesson  for  fraud  and  oppression, 
and  against  Lord  Chancellor  Bacon  for  judicial  corruption." 
When  questions  of  privilege  arose  out  of  the  imprisonments  of  Questions 
Coke  and  Sandys,  James  made  the  alarming  declaration  that  °  pn 
"we  think  ourselves  very  free  and  able  to  punish  any  man's 
misdemeanors  in  parliament,  as  well  during  their  sittings  as 
after ;   which  we  mean  not  to  spare  hereafter,  upon  any  occa- 
sion of  any  man's  insolent  behaviour  there  shall  be  ministered 
into  us."  7    He  then  attempted  to  abridge  the  right  of  de- 
liberation by  directing  an  angry  letter  to  the  speaker,  in  Right  of 
which,  after  asserting  that  the  house  had  trenched  upon  his  t^  nr 
"prerogative  royal"  by  debating  "publicly  in  matters  far 
beyond  their  reach  or  capacity,"  he  forbade  the  members  to 
meddle  "with  mysteries  of  state,"  in  which  he  specially  in- 

1  Carte,  iv.  35.     See  also,  as  to  the  reply  of  the  judges  collectively,  State 
Papers,  Ixxxvii.  44,  ii. 

2  Bacon,  Letters  and  Life,  vi.  94. 

3  A  place  in  the  peerage  as  Lord  Verulam  soon  followed. 

4  Cf.  Stephen,  History  of  the  Criminal  Law,  i.  158.     Since  1621  fifty-four  im- 
peachments have  taken  place,  the  last  being  that  of  Lord  Melville  in  1805. 

•  For  the  sentence  against  him,  tee  Lords'  Journals,  iii.  89,  95,  108.     Mom- 
pesson escaped. 

6  Commons'  Journals,  i.  560;   Lords'  Journals,  iii.  98. 

7  Parliamentary  History,  v.  492. 


362  THE  SCIENCE  OF  JURISPRUDENCE 

eluded  the  "match  with  the  daughter  of  Spain"  and  "the 
honour  of  the  king."  1  When  the  house  protested  against 
the  attempt  "to  abridge  us  of  the  ancient  liberty  of  Parlia- 
ment for  freedom  of  speech,"  James  declared  its  privileges  to 
be  a  matter  of  favor  and  not  of  right.2  Against  that  pernicious 

Protest  of     doctrine  the  commons  entered  upon  their  journal  the  memo- 
December 
is,  i62i.       rable  protest  of  December  18,  which  a  few  days  later  the  king, 

in  the  presence  of  the  council  and  the  judges,  tore  out  with 

his  own  hands.3    In  James's  fourth  Parliament,  which  met  in 

impeach-      February,  1624,  nothing  of  constitutional  importance  occurred 

ment  of  t 

Middlesex,  except  the  impeachment  of  Middlesex,  in  which  it  was  settled 
that  the  accused  might  be  assisted  by  counsel  and  should  also 
be  furnished  with  copies  of  the  depositions  for  and  against 
him.4  During  a  period  of  fourteen  years  no  new  statute 
had  come  into  existence;  and  among  those  now  passed  the 
Anactregu-  most  important  was  a  declaratory  act  regulating  monopolies 
monopolies.  (21  Jac.  I.,  c.  3)  which,  after  excepting  some  of  the  principal 
ones,  declared  all  others  utterly  void  as  contrary  to  the  ancient 
and  fundamental  laws  of  the  realm.  In  October,  James 
prorogued  his  last  Parliament,5  and  on  March  27,  1625,  he 
died. 

Charles  and  The  result  of  James's  "Kingcraft"  was  not  only  to  break 
ham.  ng"  down  by  the  creation  of  court  favorites  the  influence  of  the 
trained  administrators,  who  even  in  the  Tudor  time  had 
stood  as  a  constitutional  check  upon  the  royal  prerogative, 
but  also  to  infuse  into  a  system  already  too  despotic  the 
exaggerated  ideas  of  absolutism  embodied  in  his  theory  of 
the  divine  right  of  kings.  In  that  extreme  and  artificial 
school  both  Buckingham  and  Charles  were  trained,  and 
from  the  time  the  actual  direction  of  affairs  passed  into  their 
hands  they  were  united  by  a  singleness  of  purpose  that  had 

1  The  king  to  the  speaker,  December  3,  Proceedings  and  Debates,  ii.  277. 

2  King  to  Calvert,  December  16,  Proceedings  and  Debates,  ii,  339. 

*  Parliamentary  History,  i.  1362.  *  Lords'  Journal,  pp.  307-383, 418. 

1  For  the  proclamation,  see  Foedera,  xvii.  625. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  363 

for  its  aim  the  extension  of  the  political  system  in  which  they 
had  been  reared.    From  Charles's  accession  Laud  became  his  Laud  as 
ecclesiastical  guide  and  counselor;    and  the  distrust  of  the  ^caTguide. 
young  king,  which  thus  arose  out  of  his  alliance  with  those 
whom  the  Puritans  regarded  as  papists  at  heart,  was  greatly 
heightened  by  his  union  with  the  French  princess,  Henrietta 
Maria.1    To  all  these  adverse  circumstances  that  predestined 
Charles  to  continue  the  conflict  with  the  popular  party  must 
be  added  the  dogged  obstinacy  of  his  natural  temper,  upon  The  king's 
which  neither  arguments  nor  current  events  seemed  to  have  obstinacy- 
any  influence  whatever.3    Instead  of  the  power  to  yield  hon- 
estly at  the  critical  moment,  after  the  manner  of  the  Tudor 
princes,  Charles  possessed  only  the  power  to  dissemble,  a 
fatal  defect  of  which  at  the  beginning  of  his  reign  the  nation 
seems  to  have  been  profoundly  ignorant.     In  Charles's  first 
Parliament,  which  met  in  June,  1625,  occurred  a  series  of 
angry  debates  in  which  the  Puritans  reproached  the  king  for 
his  failure  to  enforce  the  penal  laws  against  the  Catholics, 
while  the  court  faction  assailed  the  popular  party  in  the  house  Hament- 
for  their  bad  faith  in  refusing  to  grant  supplies  for  the  main- 
tenance of  a  war  undertaken  at  their  express  invitation.    The 
real  reason  preventing  a  settlement  of  the  financial  question 
was  distrust  of  Buckingham,  to  prevent  whose  impeachment 
Parliament  was  dissolved  on  August  12.    Under  such  circum-  Customs 
stances  the  customs  revenue  Parliament  had  failed  to  grant  ro™i    y 
was  levied  by  royal  warrant  declaring  that  it  "was  now  a  warrant- 
principal  part  of  the  revenue  of  the  crown,  and  was  of  neces- 
sity to  be  continued  for  the  support  thereof"; s  and  to  pro- 
vide present  means  for  sending  out  the  fleet  the  council  also 
authorized  the  issue  of  privy  seals  to  raise  what  was  in  effect 

1  As  to  the  concessions  in  favor  of  English  Catholics  insisted  upon  by  Riche- 
lieu, see  Carlisle  and  Kensington  to  Conway,  August  7,  1624,  State  Papers, 
France. 

*  Of  himself  he  once  said,  "I  cannot  defend  a  bad  nor  yield  in  a  good  cause." 
Laud,  Diary,  February  1,  1623. 

1  Foedera,  xviii.  737,   xx.  118;   Dowell,  History  of  Taxation,  i.  192. 


364 


THE  SCIENCE  OF  JURISPRUDENCE 


Ministerial 

responsi- 

bility. 


Bucking- 
ham im- 
peached. 


Elliot  and 
Digges  im- 
prisoned. 


Use  of  the 

money 

power. 


a  forced  loan.  In  the  second  Parliament,  which  began  in 
February,  1626,  Sir  John  Eliot,  taking  up  the  subject  of 
ministerial  responsibility  at  the  point  at  which  Phelips  had 
left  it,  essayed  the  mighty  task  of  substituting  for  the  Tudor 
theory  that  ministers  are  responsible  to  the  crown  alone,  the 
more  ancient  doctrine  that  they  are  responsible  to  the  nation 
in  Parliament,  a  doctrine  finally  reestablished  in  England 
through  the  results  of  two  revolutions.  To  the  mind  of  Eliot, 
the  cause  of  all  the  evils  from  which  the  country  was  then 
suffering  was  the  maladministration  of  Buckingham ;  and 
the  whole  strength  of  his  nature  was  concentrated  into  the 
effort  to  bring  him  to  justice  through  the  application  of  the 
means  so  successfully  applied  to  the  punishment  of  Bacon  and 
Middlesex.  In  May,  Buckingham  was  impeached  at  the  bar 
of  the  lords  where  Eliot,  after  a  prologue  from  Digges,  com- 
bated in  a  great  speech,  that  opened  up  a  new  era  in  English 
eloquence,1  the  idea  that  a  minister  could  claim  immunity 
from  punishment  by  pleading  obedience  to  the  commands  of 
his  sovereign.2  Charles's  response  was  the  committal  of  Eliot 
and  Digges  to  the  Tower  for  offensive  words  spoken  in  the 
course  of  the  impeachment.3  The  counter  blast  from  the 
house  was  a  successful  refusal  to  proceed  with  business  until 
their  members  were  released.  After  failure  to  induce  the 
peers  to  pronounce  judgment  against  the  favorite,  the  com- 
mons attempted  to  use  the  money  power  as  a  means  of  forc- 
ing Charles  to  concede  ministerial  responsibility  hi  a  form 
that  involved  a  direct  admission  of  their  supremacy  over  the 
crown.  The  king's  reply  was  an  immediate  dissolution. 

1  Foster,  Sir  J.  Eliot,  i.  324-330. 

2  In  speaking  of  the  loan  of  English  ships  to  serve  against  the  Protestant  city 
of  Rochelle,  he   said,  "that  if  his  majesty  himself  were  pleased  to  have  con- 
sented, or  to  have  commanded,  which  I  cannot  believe,  yet  this  could  no  way 
satisfy  for  the  duke,  or  make  any  extenuation  of  the  charge. "     For  the  earlier 
history  of  that  doctrine,  see  Taylor.  The  Origin  and  Growth  of  the  English  Con- 
stitution, i.  442,  443,  503. 

'  Both  houses  finally  declared  they  had  heard  no  such  words.     Lords'  Jour- 
nal, pp.  592,  627;  Commons'  Journal,  May  12,  13,  15,  17,  19,  20. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  365 

On  the  15th  of  June  his  second  Parliament  ended  its  existence. 

Under  such  a  pressing  need  for  money  as  had  never  been  felt 

before,  the  council  made  a  demand  upon  the  counties  for  a 

free  gift,  which  was  to  be  raised  by  the  justices  of  the  peace  Royal 

who  were  instructed  to  exhort  their  counties  voluntarily  to 

supply  the  amount  of  the  four  subsidies  provided  for  in  the 

act  of  Parliament  that  had  failed  to  pass.1    To  that  demand, 

which  struck  at  the  very  existence  of  the  parliamentary 

system,  sharp  resistance  was  offered,  out  of  which  in  1627 

grew  the  case  of  the  five  country  gentlemen  who,  after  im-  Case  of  the 

.  »          i     •  •  111  e    five  knights, 

pnsonment  for  their  resistance,  appealed  to  the  court  of  1027. 
king's  bench  for  a  habeas  corpus  to  test  its  legality.2  At  the 
bar  they  claimed  that  they  were  protected  by  that  clause  of 
the  Great  Charter  which  provides  that  "no  freeman  shall  be 
imprisoned  .  .  .  unless  by  the  lawful  judgment  of  his  peers, 
or  by  the  law  of  the  land."  In  other  words,  they  claimed  that 
they  were  entitled  to  "due  process  of  law,"  which  a  com-  "Due 


mittal  of  the  privy  council,  even  "by  special  order  of  the  " 
king,"  was  not.  After  the  attorney-general,  relying  mainly 
upon  the  famous  dictum  contained  in  Anderson's  Reports, 
had  argued  that  such  a  commitment,  although  it  assigned 
no  cause,  was  "due  process  of  law,"  a  judgment  was  rendered 
by  Chief  Justice  Hyde,  refusing  bail,  but  without  holding 
directly  that  the  king  could  never  be  required  to  show  cause.3 
A  new  expedient  was  now  put  forward,  resting  on  a  tradi-  origin  of 
tion  dating  back  to  the  beginning  of  English  taxation  in  pre- 
Norman  times,  the  Danegeld  assessment  of  1008.4  In  accord- 
ance with  the  practice  existing  in  the  time  of  the  Plantagenets,5 
a  part  of  the  fleet  that  took  Cadiz  in  Elizabeth's  reign  had  been 
supplied  by  a  levy  on  the  maritime  counties,  and  in  June, 

1  State  Papers,  Dom.  xxxi.  30,  31  ;   Foedera,  xviii.  764. 

*  The  return  was  that  they  were  held  under  warrant  from  the  privy  council 
by  special  command  of  the  king. 

*  State  Trials,  iii.  1.  «  See  above,  p.  236. 

4  Extracts  from  the  public  records,  State  Papers,  Dom.  cclxxvi.  65. 


366  THE  SCIENCE  OF  JURISPRUDENCE 

1626,  Charles  had  ventured  to  command  such  counties  to 
join  the  port  towns  in  sending  out  a  fleet.1  In  February, 
1628,  when  all  other  means  had  failed,  Charles  conceived  the 
idea  of  levying  ship  money  as  such  upon  all  counties,  and 
letters  were  accordingly  issued,  commanding  that  the  sum 
assessed  upon  each  shire  should  be  paid  into  the  exchequer 
by  the  first  of  March.2  In  view,  however,  of  the  opposition 
which  the  unheard-of  demand  at  once  provoked,  the  king 
promptly  revoked  the  order,  and  thus  suspended  the  new 
device  until  a  later  day.3 

Sir  Thomas  Such  was  the  prelude  to  the  calling  of  Charles's  third  Parlia- 
1628. W  '  ment,  which  met  in  March,  1628.  Side  by  side  with  Eliot, 
Coke,  and  Phelips  now  stood  Sir  Thomas  Wentworth,  who 
did  yeoman's  service  in  the  popular  cause  in  a  great  oration 
in  which,  after  reviewing  all  the  questions  in  controversy, 
except  those  involving  the  subject  of  religion,  he  demanded 
that  there  should  be  no  more  forced  loans,  no  more  illegal 
imprisonments,  no  more  compulsory  employments  abroad, 
no  billeting  of  soldiers  without  the  assent  of  the  householder, 
thus  outlining  the  substance  of  the  great  statute,  afterward 
Petition  known  as  the  Petition  of  Right,  that  derived  its  form 
from  Coke.4  When  Charles  undertook  to  promise  in  general 
terms,  Coke  proposed  on  May  6  a  petition  of  right,  whereby 
the  king  could  "speak  by  record  and  in  particulars,  and  not 
in  general  terms."  5  The  famous  document  then  drawn  up 
by  a  subcommittee,  and  which  is  usually  compared  with  the 
Great  Charter  because  it  attempted  to  curb  the  power  of  the 

1  For  a  list  of  the  ports  called  upon  to  furnish  ships,  see  State  Papers,  Dom. 
xxx.  81,  June.     As  to  the  ships  required  from  Exeter,  see  Hamilton,  Quarter 
Sessions,  p.  119. 

2  For  a  list  of  the  sums  levied  upon  the  counties,  amounting  for  all  England 
to  £173,000,  see  State  Papers,  Dom.  xcii.  88,  93. 

*  Court  and  Times,  i.  322,  324. 

*  "  If  Coke  was  finally  to  give  to  the  petition  its  form,  Wentworth  was  the 
originator  of  its  substance."     Gardiner,  vi.  237. 

*  Coke  said,  "not  that  I  distrust  the  king,  but  that  I  cannot  take  his  trust, 
save  in  a  parliamentary  way."     Parlimentary  History,  viii.  195. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  367 

Tudor  monarchy  inherited  by  the  Stuarts,  as  the  earlier  docu- 
ment had  attempted  to  curb  the  Angevin  monarchy  as  it 
existed  in  the  days  of  John,  forbade  all  forms  of  illegal  taxa- 
tion, arbitrary  imprisonments  without  due  process  of  law, 
billeting  of  soldiers  and  mariners,  and  proceedings  under 
martial  law.  When  Parliament  reassembled  in  January, 
1629,  the  case  of  Rolle,1  a  member  whose  goods  had  been  Roiie'scase. 
seized  for  his  refusal  to  pay  tonnage  and  poundage,  drew  from 
the  king  the  declaration  that  he  did  not  intend  to  levy  the 
customs  by  his  "hereditary  privilege."2  The  house's  cold 
response  to  that  concession  revealed  the  fact  that  it  was 
now  intent  upon  the  redress  of  the  religious  grievance  in-  The 
volved  in  the  departure  that  had  taken  place  from  the  Cal- 
vinistic  theology,  dominant  in  the  national  church  almost 
from  the  beginning  of  the  Reformation,  in  favor  of  what  was 
denounced  as  popery  and  Armenianism.  To  arrest  discussion 
and  prevent  the  adoption  of  resolutions  on  that  subject,  the 
king  on  February  25  sent  a  command  to  the  house  to  adjourn 
until  the  2d  of  March,  to  the  end  that  "a  better  and  more 
right  understanding  might  be  begotten  between  him  and 
them."  3  To  the  first  order  the  house  submitted;  but  when 
on  the  2d  of  March  the  speaker,  Sir  John  Finch,  declared  that 
it  was  the  king's  pleasure  that  they  should  adjourn  until  the 
10th,  Eliot  resolved  to  resist  the  power  of  the  crown  to  force  Power  of 
an  adjournment.  While  the  speaker  was  held  forcibly  in  the  for<fe  ad- 
chair,  Eliot's  resolutions  upon  taxation  and  religion  were 
offered  by  Holies,  who  himself  put  the  question.4  After  their 
adoption  the  commons  of  their  own  motion  adjourned  them- 
selves until  the  10th.  After  justifying  the  act,  Charles  then 

1  Attorney-General  v.  Rolle,  Orders  and  Decrees  in  the  Exchequer,  November 
13,  27,  4  Charles  I.,  fol.  254,  262. 

2  See  the  extract  printed  in  Lingard,  viii.  346. 

*  Parliamentary  History,  ii.  502. 

*  For  the  events  of  that  day,  see  Journals  of  both  houses;  Rushworth,  i.  655- 
672;  Whitelock,  pp.  12,  13;  Nicholas's  Notes;  State  Papers,  Dom.  cxxxviii.  6,  7. 
For  the  best  restatement,  see  Gardiner,  vii.  67-76. 


368  THE  SCIENCE  OF  JURISPRUDENCE 

dissolved  the  Parliament  in  which  Eliot 1  had  made  his  last, 
and  Oliver  Cromwell  his  first,  speech,  and  whose  successor 
was  not  to  be  called  until  after  the  lapse  of  eleven  years  of 
personal  rule. 

During  that  period  it  was,  when  government  was  carried 
on  by  the  council  only  with  the  aid  of  servile  judges,2  that  the 

Ship  writs     king,  in  June,  1635,  announced  his  intention  to  extend  ship 

counties.  writs  to  inland  counties,  as  "an  everlasting  supply  of  all 
occasions."  3  When  in  the  next  year  another  set  of  writs 
were  issued  the  constitution  found  a  resolute  defender  in 

Hampden.  John  Hampden,  a  cousin  of  Oliver  Cromwell,  who  resolved 
that  the  great  question  of  ship  money,  already  sustained 
by  the  answers  of  the  judges,4  should  be  argued  in  open 
court  by  famous  advocates,  who  could  thus  be  heard  by  the 

Judgment  nation  as  a  whole.  Of  the  five  judges  against  seven 5  who 
sided  with  Hampden,  now  a  national  leader,  three  based  their 
judgments  on  purely  technical  grounds,  leaving  only  two 
who  held  with  him  on  the  merits.6  During  this  eleven  years 
of  personal  rule,  during  which  Charles  was  driving  the  con- 
ciliar  system  on  to  its  doom,  he  was  zealously  supported  by 
two  able  ministers,  who  stood  firmly  by  his  side  until  first 
one  and  then  the  other  was  stricken  down  by  "that  two- 
handed  engine  at  the  door,  ready  to  smite  once,  and  smite  no 
more."  7  When  in  February,  1637,  the  judges  for  the  second 

1  Immediately  after  adjournment  Eliot  and  eight  of  his  associates  were  com- 
mitted to  the  Tower  or  to  other  prisons.     6  Parliamentary  History,  viii.  333. 

*  Bacon  says  in  one  of  his  essays  that  judges  should  "  be  lions,  but  yet  lions 
under  the  throne,  being  circumspect  that   they  do  not  check  or  oppose  any 
points  of  sovereignty." 

*  Clarendon,  History  of  the  Rebellion,  i.  68. 

*  February,  1637.     State  Papers,  Dom.  cccxlvi.  11,  14;  Rushworth,  ii.  352. 

*  These  judgments  were  delivered  at  intervals  during  the  year  1638.     R.  v. 
Hampden  (case  of  ship  money),  13  Car.  I.,  State  Trials,  iii.  825-1316. 

*  Crooke,  speaking  in  his  behalf,  said:    "This  writ  is  illegal,  not  being  by 
authority  of  Parliament.     It  is  against  the  common  law,  as  appears  by  the 
fact  that  it  is  the  first  since  the  Conquest  sent  to  an  inland  town  to  prepare  a 
ship."     See    Denman,    Broom's   Constitutional   Law,    pp.    338-355;     Thomas, 
Leading  Cases  in  Constitutional  Law,  pp.  21,  22. 

7  Milton,  Lycidas. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  369 

time  upheld  the  legality  of  ship  money,  Went  worth,  who  for 
a  time  was  "with  the  opposition,  but  not  of  it,"1  wrote: 
"This  decision  of  the  judges  will  therefore  make  the  king 
absolute  at  home  and  formidable  abroad.  Let  him  only 
abstain  from  war  for  a  few  years,  that  he  may  habituate  his 
subjects  to  the  payments  of  this  tax,  and  in  the  end  he  will 
find  himself  more  powerful  and  respected  than  any  of  his 
predecessors."  2  The  attempt  of  Laud,  who  was  made  pri-  Laud, 
mate  in  1633,  to  force  uniformity  upon  the  Scotch  Kirk  finally 
brought  Charles  to  the  verge  of  war  with  his  Scottish  king- 
dom, a  condition  relieved  by  the  treaty  of  Berwick  signed 
June  18,  1639.  Wentworth,  who  was  made  earl  of  Strafford  strafford. 
in  January,  1640,  now  became  more  emphatically  than  ever 
before  Charles's  chief  guide  and  counselor.  A  born  adminis- 
trator, he  was  scornful  of  all  private  ends  in  the  desperate 
struggle  upon  which  he  entered  to  build  up  in  England,  as 
Richelieu  was  building  up  in  France,  a  system  of  despotism 
whose  organization  was  to  be  "thorough."  Pressing  need  of 
money  to  carry  on  the  impending  war  with  Scotland  forced 
Strafford  to  advise  the  calling  of  the  Short  Parliament,  which 
met  April  13,  1640.  When  a  demand  was  made  for  sub- 
sidies to  destroy  the  allies  who  were  fighting  the  battle  of 
English  freedom  across  the  border,  the  house,  led  by  Pym  pym  and 
and  Hampden,  resolved  to  take  up  first  the  question  of  ^i*"511' 
grievances:  "Till  the  liberties  of  the  house  and  kingdom  were 
cleared,  they  knew  not  whether  they  had  anything  to  give 
or  no."  3  Before  making  a  grant  the  house  was  determined 
that  redress  should  be  given  for  the  breach  of  privilege  that 
had  arisen  out  of  the  prosecution  of  Eliot,  Holies,  and  Valen- 
tine, and  for  the  unconstitutional  exaction  of  ship  money  and 
the  impositions.4  At  that  point  Charles  appealed  to  the  lords, 

1  Gardiner,  vi.  335.  *  Strafford  Papers,  ii.  61. 

»  Harleian  MSS.,  3,  931,  fol.  47  b. 

*  Parliamentary  or  Constitutional  History,  viii.  441. 

2B 


370 


THE  SCIENCE  OF  JURISPRUDENCE 


Exclusive 
right  of 
house  to 
originate 
money  bills. 


Short 

Parliament 
dissolved, 
May,  1640. 


Death 
grapple 
between 
conciliar 
and  parlia- 
mentary 
systems. 


who  declared  by  a  great  majority  l  that  in  their  judgment 
''supply  should  have  precedency,  and  be  resolved  upon  before 
any  other  matter  whatsoever,"  a  conclusion  which  in  confer- 
ence was  expressed  to  the  commons,  who  promptly  resented 
the  suggestion  of  the  lords  as  a  high  breach  of  their  exclusive 
privilege  to  originate  money  bills.  The  lords,  however, 
maintained  their  position  by  a  diminished  majority,2  while 
the  king  demanded  an  immediate  grant  of  twelve  subsidies, 
in  exchange  for  which  he  proposed  to  give  up  ship  money. 
So  soon  as  it  was  known  that  the  houses  would  not  pay  un- 
conditionally so  great  a  sum  for  the  redress  of  a  grievance 
that  should  never  have  existed,3  Parliament  was  abruptly 
dissolved  on  May  5,  after  a  session  of  three  weeks,  during 
which  time  it  sternly  expressed  by  its  refusal  to  do  anything 
the  breadth  and  depth  of  the  national  displeasure.  "So 
great  a  defection  in  the  kingdom,"  wrote  Northumberland, 
"had  not  been  known  in  the  memory  of  man." 

The  time  had  now  come  for  the  death  grapple  between 
the  conciliar  system,  to  which  the  genius  of  Strafford  had 
given  a  fresh  inspiration,  and  the  parliamentary  system, 
destined  to  enter  upon  a  new  career  under  the  leadership 
of  Pym,  who  was  the  first  to  put  in  practice  the  con- 
stitutional principle,  —  the  basis  of  the  English  constitution 
in  its  modern  form,  —  which  maintains  not  only  that  the  su- 
preme powers  of  the  state  are  vested  in  Parliament  as  against 
the  Crown,  but  that  as  between  the  houses  themselves  the 
ultimate  sovereignty  resides  in  the  popular  branch  of  the 
legislature.  Fully  conscious  of  the  fact  that  these  mighty 
issues  were  bound  up  in  the  impending  crisis,  Pym  rode  with 


1  Sixty-one  out  of  a  house  of  eighty-six  voted  for  the  king.     State  Papers, 
Dom.  ccccli.  39. 

2  Admitting,  however,  that  "the  bill  of  subsidies  ought  to  have  its  inception  in 
your  house ;  and  that  when  it  comes  up  to  their  lordships,  and  is  by  them  agreed 
to,  it  must  be  returned  back  to  you,  be,  by  your  Speaker,  presented." 

3  Cf.  Clarendon,  History  of  the  Rebellion,  i.  136. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  371 

Hampden  through  the  counties  upon  the  eve  of  the  elections, 
in  order  to  urge  the  constituencies  to  return  men  of  the  right 
temper  to  represent  them  in  that  famous  assembly  which  met 
on  the  3d  of  November,  1640,  and  which  was  destined  to  be 
known  for  all  time  as  the  Long  Parliament.    The  response  Long  Par- 
to  the  joint  appeal  was  such  a  manifestation  of  popular  sup-  November, 
port  as  had  not  been  seen  since  the  days  of  Simon  of  Mont-  1640' 
fort.     The  leadership  of  the  great  majority  thus  gathered  at  Leadership 
St.  Stephen's  naturally  passed  to  Pym,  and,  according  to  his 
conception,  the  duty  of  the  popular  party  in  the  house  was 
to  hew  away  by  purely  constitutional  means  the  abnormal 
powers  the  conciliar  system  had  taken  on  during  the  Tudor 
period,  and  which  both  James  and  Charles  had  augmented, 
in  order  to  restore  the  parliamentary  system  to  the  position 
of  legitimate  influence  it  had  enjoyed  in  the  days  of  the 
Lancastrian  kings.     The  means   finally  employed  for  that 
end  consisted,  first,  of  the  removal  and  punishment  of  the 
great  ministers  by  whom  the  conciliar  system  had  been  per- 
verted;  second,  of  the  correction  of  the  more  recent  abuses 
brought  about  by  them;    third,  of  such  diminution  of  the 
powers  of  the  council  as  to  render  it  incapable  of  serious  harm 
for  the  future.     Under  these  three  heads  may  be  grouped  all 
of  the  more  important  acts  of  the  Long  Parliament.     The 
leadership  to  which  Pym  was  assigned  by  the  popular  party, 
and  which  put  at  his  back  not  only  the  House  of  Commons 
but  a  Scottish  army  on  English  soil,  involved  him  at  once  in 
a  duel  to  the  death  with  Strafford,  who  was  supported  by  all  His  duel  to 
the  resources  of  the  conciliar  system  and  by  the  army  of  the  wi*h  straf- 
king.     While  the  two  gladiators  thus  equipped  glared  at  each  ford- 
other  for  a  moment  across  the  arena,  Strafford  forced  Pym's 
hand  by  advising  Charles  to  seize  the  popular  leaders  upon 
a  charge  of   treasonable  relations  with  the   Scots.1    Only  a 
timely  betrayal  of  the  secret  enabled  Pym  to  parry  the  blow 

1  Rushworth,  Stra/ord's  Trial,  p.  2 ;  Laud,  Works,  iii.  295. 


372 


THE  SCIENCE  OF  JURISPRUDENCE 


Hin  im- 
peachment 
and 


attainder. 

Trial  of 
Laud. 


His 
attainder. 


Judgment 
against 
Hampden 
annulled. 


by  impeaching  Strafford  so  hurriedly  at  the  bar  of  the  lords, 
on  the  llth  of  November,  that  he  was  forced  to  promise  that 
the  house  would  send  up  the  grounds  of  accusation  at  a  later 
day.1  In  the  trial  that  began  March  22,  1641,  the  turning 
point  was  an  unsuccessful  attempt  to  prove  that  Strafford 
proposed  at  the  council  board  to  bring  over  the  Irish  army 
to  subdue  England.2  A  failure  in  the  proof  led  no  doubt  to 
an  abandonment  of  the  impeachment  in  order  that  resort 
might  be  had  to  the  surer  and  swifter  means  of  a  bill  of 
attainder,  brought  in  on  the  10th  of  April  and  approved  on 
the  10th  of  May.3  When  the  trial  of  Laud,  impeached  in 
1640,  began  in  March,  1644,  his  counsel  contended  that  upon 
the  facts  adduced  he  was  not  guilty  of  treason  as  a  matter  of 
law  under  the  statute  of  Edward  III.4  The  impossibility  of 
answering  that  argument  drove  the  commons  to  abandon  the 
impeachment,  and  to  pass  the  bill  of  attainder  under  which 
he  was  executed  in  1645.5  Two  days  after  the  house  ordered 
the  impeachment  that  deprived  Strafford  of  its  liberty,  it 
commanded  the  release  of  Prynne,  Bastwick,  Burton,  Leigh- 
ton,  and  Lilburne,  victims  of  the  cruel  tyranny  of  the  star 
chamber.6  Turning  then  to  the  redress  of  the  gigantic  evil 
known  as  ship  money,  it  passed  an  act  which,  after  declaring 
void  the  late  proceedings  on  that  subject,  and  vacating  all 
records  and  process  concerning  the  same,  specially  annulled 
the  judgment  rendered  in  the  exchequer  chamber  against 
Hampden  as  contrary  to  the  liberty  of  the  subject  as  defined 
in  the  laws  of  the  realm  in  general,  and  in  the  Petition  of  Right 

1  Commons'  Journal,  ii.  26;   Clarendon,  History  of  the  Rebellion,  i.  243. 
3  For  Strafford's  objections  to  the  sufficiency  of  Vane's  testimony,  see  Gardi- 
ner, History  of  England,  ix.  319,  320. 

3  Strafford  Letters,  ii.  432.     Charles  said  as  he  signed  the  bill,  "My  lord  of 
Strafford's  condition  is  better  than  mine." 

4  Laud,  Works,  vi.  416. 

*  The  bill  encountered  legal  difficulties  in  the  lords  which  were  referred  to 
the  judges,  who  declined  to  give  an  opinion.     Lords'  Journal,   December  17, 
1644. 

•  Clarendon,  History  of  the  Rebellion,  i.  202. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  373 

in  particular.1  An  Annual  Parliament  Bill,  reciting  the  old 
statutes  of  Edward  III.  guaranteeing  the  right,2  was  read  a 
second  time  in  the  commons  in  December,  1640,  at  Cromwell's 
motion;  but  it  was  shortly  afterward  transformed  into  a 
Triennial  Bill,3  the  essence  of  which  was  that  if  in  every  three  Triennial 

T>M1 

years  a  Parliament  was  not  duly  summoned  by  the  crown, 
writs  should  be  issued  by  certain  functionaries  independently 
of  it.  In  another  act  it  was  provided  that  the  present  Par- 
liament was  not  to  be  dissolved  without  its  own  consent. 
By  an  "Act  for  the  regulating  of  the  privy  council,  and  for 
taking  away  the  court  commonly  called  the  star  chamber,"  4  star 
was  swept  away  at  a  blow  all  of  that  abnormal  judicial  au- 
thority  which  during  a  century  and  a  half  had  been  exercised 
by  the  council  to  the  detriment  of  the  ordinary  tribunals; 
and  on  the  day  Charles  signed  that  bill  he  assented  to  another  6 
repealing  that  branch  of  the  statute  of  1  Elizabeth,  c.  1,  under 
which,  as  the  repealing  act  recites,  "the  said  commissioners 
have  to  the  great  and  insufferable  wrong  and  oppression  of 
the  king's  subjects,  used  to  fine  and  imprison  them  and  to 
exercise  other  authority  not  belonging  to  ecclesiastical  juris- 
diction." The  statutes  enacted  during  the  ten  months  pre-  Permanent 
ceding  the  recess  embody  the  permanent  work  of  the  Long  ° 


Parliament,  which,  with  the  exception  of  the  compulsory  Parliament- 
clauses  of  the  Triennial  Act,  was  accepted  at  the  Restoration 
as  a  part  of  the  permanent  constitution  of  the  country,  while 
everything  enacted  after  the  recess  was  at  the  same  time  re- 
jected as  temporary  and  worthless.  From  the  reassembling  of 
Parliament,  after  the  recess  that  ended  on  the  20th  of  October, 

1  16  Car.  I.,  c.  14.  Approved  August  8,  1641,  along  with  bill  limiting  the 
boundaries  of  the  forests.  Five  of  the  judges  who  had  pronounced  in  favor  of 
ship  money  were  impeached.  Stephen,  History  of  the  Criminal  Law,  i.  159. 

3  4  Edw.  III.,  c.  14;  36  Edw.  III.,  at.  i.,  c.  10. 

3  Cf.  Gardiner,  History  of  England,  ix.  253,  282. 

«  16  Car.  I.,  c.  10. 

*  16  Car.  I.,  c.  11,  entitled  "A  repeal  of  a  branch  of  a  statute  primo  Elizabethae, 
concerning  commissioners,  for  causes  ecclesiastical." 


374  THE  SCIENCE  OF  JURISPRUDENCE 

Origin  of  1641,  can  be  traced  more  distinctly  than  ever  before  the  begin- 
tarVparties.  nmg  of  the  two  parliamentary  parties  which,  after  having  been 
known  first  as  Roundheads  and  Cavaliers,  then  as  Whigs  and 
Tories,  still  survive  under  the  names  so  familiar  at  the  present 
day.  The  first  conflict  between  the  new  parties  occurred  on 
Grand  Re-  November  22,  when  the  Grand  Remonstrance  —  a  manifesto 
whose  essence  was  embodied  in  those  parts  of  it  in  which  the 
popular  leaders  formulated  (1)  their  plan  of  church  reform, 
and  (2)  the  demand  already  made  by  Pym  in  his  "  additional 
instruction,"  for  a  ministry  directly  responsible  to  Parlia- 
ment —  was  adopted  by  a  majority  of  only  eleven  votes.1 
When  the  royalists  attempted  to  resist  the  printing  of  the 
Remonstrance  the  house  broke  into  flame,  and  some  "took 
their  swords  in  their  scabbards  out  of  their  belts  and  held 
them  by  their  pommels  in  their  hands,  setting  the  lower  part 
on  the  ground."  2  When  the  parliamentary  leaders  threat- 
ened to  impeach  the  queen  herself,  she  nerved  Charles  to  the 
desperate  step  that  cost  him  his  crown  and  his  life.  On  the 
3d  of  January,  1642,  the  attorney-general,  under  an  order 
signed  by  the  king's  own  hand,  impeached  for  high  treason 
Attempt  on  Lord  Kimbolton,  together  with  Pym,  Hampden,  Holies, 
members.  Hazlcrigg,  and  Strode,  members  of  the  lower  house,  who  were 
charged  generally  with  an  attempt  to  subvert  the  fundamental 
laws  and  government,  and  to  deprive  the  king  of  his  royal 
power.3  When  the  lords  refused  to  order  the  arrest  of  the 
five  members,  Charles  took  the  extraordinary  step  of  him- 
self issuing  the  warrant  commanding  a  sergeant-at-arms  to 
make  the  arrest.  Baffled  in  that  attempt,  he  set  out  from 
Whitehall  with  the  Elector  Palatine  at  his  side  and  a  mob  of 


1  See  Foster,  Grand  Remonstrance,  p.  316.  As  Cromwell  left  the  house  he  said : 
"If  the  Remonstrance  had  been  rejected,  I  would  have  sold  all  I  had  next 
morning,  and  never  have  seen  England  any  more ;  and  I  know  there  are  many 
other  honest  men  of  this  same  resolution."  Clarendon,  iv.  52. 

3  D'Ewes,  Diary,  Harleian  MSS.,  clxii.,  fol.  180. 

3  Rush  worth,  iv.  471. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  375 

Cavaliers  at  his  back,  intent  upon  the  execution  of  his  pur- 
pose at  Westminster.1     While  the  royal  standard  was  not  Civil  war 
raised  at  Nottingham  until  the  22d  of  August,  it  may  be  said  January, 
that  "  when  Charles  and  his  armed  attendants  passed  through  1642- 
the  lobby  of  the  House  of  Commons  on  the  4th  of  January, 
the  civil  war  had  substantially  begun."  2 

18.   There  is  no  good  reason  to  believe  that  a  single  member  Common- 


of  the  great  popular  majority  which  gathered  at  St.  Stephen's  *"1 


upon  the  meeting  of  the  Long  Parliament  imagined  for  a  torate- 
moment  that  the  revolution  then  set  in  motion  under  legal 
forms  would  culminate  in  the  execution  of  the  king  and  in  the 
substitution  of  a  republican  system  for  the  ancient  constitu- 
tion.    That  entirely  unforeseen  result  suddenly  arose  out  of  a 
great  religious  and  political  upheaval  broken  into  four  dis-  Great 
tinct  stages,  each  of  which  was  the  natural,   possibly  the  broken"  into 
inevitable,  sequence  of  the  preceding.     When  Pym,  as  the  fo^stag63- 
leader  of  the  popular  party,  undertook  to  settle  once  and  for 
all  the  vital  principle  that  the  supreme  powers  of  the  state  are 
vested  in  Parliament  as  against  the  crown,  and  that  as  between 
the  houses  themselves  the  ultimate  sovereignty  resides  in  the 
popular  branch  of  the  legislature,  he  contemplated  no  more 
than  such  a  readjustment  of  the  constitutional  forces  as  would 
fix  the  center  of  gravity  of  the  state  in  the  representative 
chamber.     The  first  stage  of  the  revolution  consisted  in  the 
efforts  made  in  that  direction  by  the  popular  party  while 
acting  as  a  whole,  and  striking  as  one  man  against  abuses 
which   were   permanently   removed   through   the   measures 
adopted  during  the  first  ten  months  of  the  Long  Parliament.  Reforms 
The  second  stage  began  after  the  recess,  when  the  triumphant 
progress  of  the  popular  party  was  checked  by  a  division  in    f 
its  own  ranks  as  to  the  disposition  to  be  made  of  the  episcopal 

1  For  a  complete  statement,  see  Commons'  Journal,  January  4  ;  Rushworth, 
iv.  477;  Gardiner,  History  of  England,  x.  129-141. 
a  Foster,  Arrest  of  the  Five  Members,  pp.  376  sq. 


376 


THE  SCIENCE  OF  JURISPRUDENCE 


Struggle 
ending  with 
Grand  Re- 
monstrance. 


Triumph  of 
Presby- 
terian over 
Episcopal 
system. 


Triumph  of 
Independ- 
ents over 
Presby- 
terians. 


All  Inde- 
pendents 
combined  in 
New  Model. 


office,  —  one  faction  contending  for  its  entire  abolition,  the 
other  for  the  retention  of  the  bishops  with  diminished  powers 
and  subject  to  parliamentary  jurisdiction.  The  latter  claim, 
maintained  by  the  old  Puritan  party  within  the  church,  tri- 
umphed in  the  memorable  struggle  over  the  Grand  Remon- 
strance, whose  adoption  was  accepted  as  a  settlement  of  the 
fact  that  the  establishment,  while  retaining  episcopacy,  in  a 
modified  form,  would  tolerate  neither  the  Laudian  element 
within  its  pale,  nor  the  sectaries  who  gathered  without  in 
separate  conventicles.  The  third  stage  began  when  the 
Root-and-branch  party,  which  insisted  upon  the  entire  abo- 
lition of  the  episcopacy,  was  able  to  enforce  its  ideas  through 
a  political  alliance  with  the  Scots,  who  demanded,  as  the  price 
of  military  aid  to  the  parliamentary  cause,  the  acceptance  of 
the  Covenant  and  the  substitution  of  the  Presbyterian  for  the 
Episcopal  system  in  the  Church  of  England.  That  conces- 
sion, reluctantly  made  by  Pym  and  his  followers  as  a  political 
necessity,  did  nothing,  however,  to  advance  the  cause  of 
religious  toleration.  The  Presbyterian  party,  which  thus 
came  into  possession  of  the  state  church,  refused  to  relinquish 
one  tittle  of  its  right  to  embrace  the  whole  nation  in  its  fold, 
and  to  dictate  to  all  their  faith  and  form  of  worship.  The 
fourth  and  last  stage  of  the  revolution  began  when  the  whole 
dissenting  body  of  sectaries  resolved  to  band  together  for  the 
assertion  of  congregational  independence  against  the  scheme 
of  legal  uniformity  pressed  upon  them  through  the  state 
church  by  the  Presbyterian  majority  dominant  in  Parliament. 
This  combined  opposition  of  the  sectaries,  generally  desig- 
nated as  Independents,  first  assumed  a  definite  and  formal 
shape  when  all  of  its  various  elements  were  united  by  Crom- 
well and  Fairfax  in  that  strange  army  and  Parliament  in  one, 
known  as  the  New  Model,  whose  corner-stones  were  social 
and  religious  toleration.  Into  the  ranks  of  that  organization 
entered  every  shade  of  dissident  opinion,  not  only  religious 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  377 

but  political.    There  it  was  that  the  religious  independent 
was  converted  into  the  political  independent;    there  it  was 
that  the  levelers  appeared  as  an  organized  republican  associa- 
tion ready  to  substitute  for  the  ancient  constitution  developed 
without  design  a  commonwealth    of    the  saints  based  on 
abstract  principles.    As  early  as  October,  1647,  the  levelers 
had  embodied  their  new  conception  of  government  in  the  draft 
of  a  constitution,  entitled  "The  Agreement  of  the  People,"  l  "The 
which   proposed,   first,   that    the   constituencies  should    be 
"more  indifferently  proportioned  according  to  the  number  of  ]>eople-" 
inhabitants";    second,  that  the  existing  Parliament  should 
be  dissolved  on  September  30,  1648;   third,  that  all  future 
Parliaments  should  be  triennial;  fourth,  that  a  single  elected 
chamber  should  be  supreme  in  all  things  not  "expressly  or 
impliedly  reserved  by  the  represented  to  themselves."    That  Prototype 
prototype  of  all  constitutions,  state  and  federal,  as  they  exist  can  conau"" 
to-day  in  the  United  States,2  was  to  draw  its  authority  from  tutlons- 
a  direct  acceptance  from  the  people,  who  reserved  to  them- 
selves, by  express  constitutional  limitations  upon  the  powers 
granted,  certain  rights,  among  which  the  agreement  pointedly 
named  the  absolute  right  to  religious  liberty  and  due  process 
of  law.     This  republican  ideal,  destined  to  such  a  marvelous 
expansion,  which  the  levelers,  under  the  lead  of   Liburne, 
persistently  pressed  upon  the  leaders  of  the  army,  was  finally 
completed  in  a  modified  form  by  the  council  of  officers  on 
the  15th  of  January,  1649,  and  by  them  presented  five  days  Completed, 
later  to  the  House  of  Commons,  who  agreed  to  consider  it  as         817     ' 
soon  as  "the  necessity  of  the  present  weighty  and  urgent 
affairs  would  permit."  3    It  was  clearly  understood,  however, 
that  with  that  part  of  this  programme  which  suggested  that 

1  "An  Agreement  of  the  People  for  a  firm  and  present  peace,"  etc.  (E.  412. 
21),  presented  to  the  council  of  the  army,  October  28,  1647,  and  printed  in  full 
in  the  Appendix  to  vol.  iii.  of  Gardiner's  History  of  the  Great  Civil  War. 

3  Cf.  Bryce,  American  Commonwealth,  pt.  ii. ;  Gardiner,  iii.  387. 

8  Commons'  Journal,  vi.  122. 


378 


THE  SCIENCE  OF  JURISPRUDENCE 


Rump 
retainec  by 


Enactments 
have'f 


Rump 


constltu-  n 
tion- 


Monarchy 
ed 

February'? 
1649. 


the  Rump  should  yield  to  another  body  elected  upon  more 
popular  principles,  its  members  had  no  possible  sympathy. 
The  army  therefore  resolved  to  retain  for  the  moment  this 
fragmen^  of  an  assembly  which  it  had  purged  of  its  Presby- 
terian elements,  as  a  veil  for  the  power  of  the  sword,  and  as 
a  link,  however  weak,  with  the  past.  By  its  voice  the  sov- 
ereignty of  the  people  was  proclaimed,  and  the  ancient  con- 
stitution practically  abolished  by  the  resolutions,  adopted 
the  4th  of  January,  1649,  declaring  that  the  enactments  of 
the  commons  alone  should  have  the  force  of  law,  "although 
the  consent  and  concurrence  of  the  king  or  house  of  peers 
be  not  had  thereto."  l  Two  days  later  the  same  assembly, 
unaided  by  any  precedent  in  the  history  of  nations,  created 
the  tribunal  under  whose  judgment  the  king  passed  to  his 
doom. 

The  House  of  Commons,  which  at  the  beginning  of  the  Long 
Parliament  consisted  of  five  hundred  and  six  members,  had 
now  dwindled  to  a  mere  shadow  ;  at  the  largest  division  that 
took  place  during  the  month  that  followed  the  king's  death 
only  seventy-seven  members  were  present  to  record  their 
votes.2  And  yet  by  the  sole  authority  of  this  Rump  of  a 
Parliament  the  monarchy  was  overthrown  and  the  first  crude 
and  tentative  republican  constitution  that  appeared  in  its 
stead  was  set  up.  In  order  to  clear  the  ground  for  the  erec- 
tion of  the  new  structure,  a  vote  was  taken  on  the  7th  of 
February  abolishing  the  monarchy  as  "unnecessary,  burden- 
some, and  dangerous  for  the  freedom,  safety,  and  public 
mterest  of  the  people  of  this  nation,"  3  and  at  the  same  time 
the  House  of  Peers  was  swept  away  as  "useless  and  danger- 
ous." On  the  same  day  a  council  of  state  was  voted  "to  be 
henceforth  the  executive  power,"  4  and  on  the  14th  the  forty- 


1  Commons'  Journal,  vi.  110,  111. 

2  Ibid.  vi.  128,  130,  140,  143,  147 ;  Parliamentary  or  Constitutional  History, 
ix.  12.  3  Ibid.  vi.  132,  133.  *  Ibid.  vi.  133,  138. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  379 

one  members  of  whom  it  was  composed  were  elected  by  a 
separate  vote  on  each  name,  and  the  body  thus  constituted 
was  charged  under  "the  orders  of  the  house,"  with  the  direc- 
tion of  the  military  and  naval  forces,  the  collection  of  the  Powers  of 
revenue,  the  preservation  of  the  internal  peace  through  the  state?1 
police  power,  the  supervision  of  trade,  external  and  internal, 
the  administration  of  the  colonies,  and  the  negotiation  of 
treaties  with  foreign  nations.1    The  theory  was  that  all  the 
powers  of  the  state  were  vested  in  the  Rump,  and  that  its 
elected  council  was  a  mere  agent  in  the  work  of  administra- 
tion.    All  writs  now  ran  in  the  name  of  "the  keepers  of  the 
liberty  of  England  by  the  authority  of  Parliament."    The 
judiciary  was  reorganized,  and  the  house  declared  by  a  formal  judiciary 
vote  that  the  common  law  should  remain  as  the  rule  to  be  reorsamzed- 
enforced  by  their  judgments.2    Not  until  the  19th  of  May 
was  the  act  passed  which  formally  declared  the  republic  to  be 
a  "commonwealth  and  a  free  state."     When  the  Rump  re- 
fused to  dissolve  itself,  Cromwell  finally  dissolved  both  the  Rump  dis- 
Rump  and  its  council  by  the  sword,  April  20,  1653.3    After  AprU,  iess. 
clearing  the  chamber  he  took  the  mace  from  the  table  and 
then  closed  and  locked  the  doors.     Having  thus  torn  away 
the  veil  by  which  the  power  of  the  sword  had  for  a  time  been 
concealed,  the  military  party,  under  the  direction  of  Crom-  Military 
well,  proceeded  to  construct  a  purely  military  dictatorship,        a  c 
whose  executive  organ  was  a  self-appointed  council  of  state 
composed  of  eight  officers  of  high  rank  and  four  civilians, 
which,  with  Cromwell  at  its  head,  was  intended  to  be  symbolic 
of  Christ  and  his  twelve  apostles.4    The  abortive  attempts  at 

1  Ibid.  vi.  139,  140.  The  powers  of  the  admiralty  were  also  vested  in  the 
council.  Cf.  Guizot,  Cromwell,  p.  5  ;  Godwin,  History  of  the  Commonwealth,  iii.  35. 

3  Commons'  Journal,  vi.  134-136  ;  Gardiner,  Commonwealth  and  Protectorate f 
i.  10.  Six  of  the  judges  refused  to  serve  without  such  a  declaration. 

*  Then  it  was  that  Bradshaw,  president  of  the  council,  declared  :  "  But,  Sir, 
you  are  mistaken  to  think  that  the  Parliament  is  dissolved.     No  power  under 
heaven  can  dissolve  them  but  themselves.     Therefore  take  you  notice  of  that." 
Cf.  Whitelock,  p.  554 ;  Ludlow,  ii.  19,  23 ;  Leicester,  Journal,  p.  139. 

*  Cromwell's  Letters  and  Speeches,  ii.  386 ;  Old  Parliamentary  History,  xx.  151. 


380 


THE  SCIENCE  OF  JURISPRUDENCE 


"Instru- 
ment of 
Govern- 
ment, " 
1653. 


"An  Act  of 
Govern- 
ment," 
1657. 


Richard 
Cromwell, 
September, 
1658. 


reform  made  by  the  constituent  assembly  set  up  under  this 
regime  so  alarmed  all  classes  that  Cromwell  dissolved  it, 
December  12,  1653. *  Four  days  later  Cromwell  was  tendered 
the  office  of  protector  under  a  new  constitution  called  the 
"  Instrument  of  Government,"  3  which  vested  the  supreme 
executive  power  in  a  protector  and  council,  and  the  supreme 
legislative  power  in  a  protector  and  a  single-chamber  Parlia- 
ment to  be  assembled  triennially.  On  the  25th  of  March, 
1657,  a  new  scheme  of  government  was  adopted  vesting  the 
supreme  powers  in  a  protector  and  a  two-chamber  Parliament. 
While  the  new  constitution,  which  Cromwell  himself  styled 
"An  Act  of  Government,"8  withheld  from  him  the  title  of 
king,  it  indicated  an  unmistakable  purpose  to  return  to  the 
monarchical  system  by  providing  for  the  creation  of  an  upper 
house,  whose  members  were  to  be  nominated  by  the  protector 
with  the  approval  of  the  popular  chamber  in  the  first  instance, 
and  afterward  of  that  of  the  upper  house  itself.  The  supreme 
power  was  still  to  remain  in  the  protector,  who  was  authorized 
to  name  his  successor. 

When  Cromwell  died,  September  3,  1658,  the  fabric  of  his 
power  passed  so  safely  through  the  ordeal  of  his  death  that 
the  council  was  able  to  proclaim  the  peaceful  succession  of  his 
son  Richard,  despite  the  grave  doubt  that  existed  as  to  the 
fact  of  his  nomination.  A  mere  verbal  statement  that  he 
had  been  designated  by  his  father  as  his  successor  a  short 
time  before  his  end  4  was  accepted  as  sufficient,  and  to  the 
surprise  of  all  the  new  protector,  who  was  supported  neither 
by  personal  merit  nor  public  services,  promptly  summoned 
a  Parliament,  the  popular  branch  of  which  was  constituted 


1  Commons'  Journal,  vii.  363 ;    Ludlow,  Memoirs,  pp.   199,  200. 

2  A  proclamation  was  then  issued  with  the  ceremonies  usual  upon  the  acces- 
sion of  a  new  monarch.     Thurloe,  i.  632  sq. ;  Foster,  Statesmen  of  the  Common- 
wealth, v.  223-228. 

3  Letters  and  Speeches,  iii.  367,  370. 

*  Thurloe,  vii.  372.     See  also  Ibid.,  pp.  364,  365. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  381 

on  the  old  plan,  thus  reviving  the  representation  of  many 
boroughs  disfranchised  by  the  scheme  of  reform  recently  em- 
ployed on   several   occasions.     When   a   fresh  conflict  arose 
between  the  army  and  the  houses,  the  latter  were  dissolved  Houses 
April  22,  1659.1    The  supreme  power  was  then  resumed  by 
the  military  chiefs,  who,  in  the  hope  of  composing  the  country, 
upon  the  verge  of  anarchy,  agreed  with  the  republicans  that 
the  protectorate  should  be  set  aside  in  favor  of  the  remnant 
of  the  Long  Parliament,2  which  had  been  expelled  from  St.  Rump 
Stephen's  on  the  20th  of  April,  1653.    The  new  coalition  thus  [^May. 
formed  for  the  defense  of  republicanism  and  civil  liberty 
endured,  however,  only  for  a  moment.     Dissensions  at  once 
arose  out  of  the  demands  made  by  the  army  which  Parliament 
regarded  as  unbearable,  and  thus  began  a  new  conflict  that 
culminated  on  October  13  in  a  fresh  expulsion  of  the  Rump  Expelled  in 
by  the  officers,  who  undertook  to  secure  the  public  peace,  and 
to  prepare  a  new  form  of  government  for  submission  to  a  new 
Parliament.    At  that  point  it   was  that   the    army  finally 
divided  against  itself.    General  Monk,  the  commander  of  the 
Scottish  forces,  the  moment  he  heard  of  the  expulsion  of  the 
members  openly  appeared  as  their  patron,  under  the  title  of 
"asserter  of  the  ancient  laws  and  liberties  of  the  country." 
By  that  pressure  the  Rump  was  reinstated  in  all  its  former 
authority  before  the  end  of  December.     Early  in  January,  General 
1660,  Monk  crossed  the  border,  and  in  February  he  agreed  to  ™^'i660~ 
admit  the  royalist  Presbyterian  members  who  had  been  ex-  Excluded 
eluded  from  the  house  in  1648,  upon  their  promise  to  settle 
the  arrears  of  the  army,  to  issue  writs  for  a  new  Parliament  to 
sit  at  an  early  day,  and  to  dissolve  themselves  before  that 


1  Ibid.  vii.  555,  557,  662 ;   Burton,  Diary,  iv.  448-463 ;  Whitelock,  p.  677. 

2  From  the  republican  body  thus  reconstituted  were  carefully  excluded  those 
members  at   once    royalist  and  Presbyterian,  of  whom  the  house  had  been 
purged  by  Colonel  Pride  on  the  6th  of  December,  1648.     "Of  those,  one  hun- 
dred and  ninety-four  were  still  alive,  eighty  of  whom  actually  resided  in  the 
capital."     Lingard,  viii.  573. 


382 


THE  SCIENCE  OF  JURISPRUDENCE 


Long 

Parliament 
dissolved, 
March  16. 


Convention 
Parliament 
met,  April 
25. 


Return  of 
Charles  II. 


Restoration 
and  Revo- 
lution of 
1688. 


Continuity 
of  develop- 
ment as 
affected  by 
revolution- 
ary epoch. 


time.1  Under  that  compact  a  bill  was  read  for  the  third 
time  on  the  16th  of  March,  dissolving  "the  Parliament  assem- 
bled on  the  3d  of  November,  1640,"  and  convening  at  the 
same  time  a  new  assembly  to  be  composed  of  lords,  knights, 
citizens,  and  burgesses,  which  was  to  meet  on  the  25th  of 
April,  1660.  At  the  appointed  time  the  Convention  Parlia- 
ment, so  designated  by  reason  of  the  fact  that  it  was  called 
without  the  king's  writ,  met;  and  after  the  organization  of 
the  lower  house  with  the  Presbyterians  in  the  majority,  and 
with  the  presence  in  the  upper  of  the  greater  part  of  the 
peerage,2  the  scheme  of  restoration  was  laid  bare  by  the 
presentation  to  the  two  houses  of  letters  directed  to  them 
from  Breda  by  the  king,  who  briefly  set  forth  therein  the  con- 
ditions under  which  he  was  willing  to  ascend  the  throne  of 
his  ancestors.  Upon  the  faith  of  that  declaration,3  which  was 
accepted  as  a  royal  charter,  the  houses,  after  declaring  that 
"the  government  is,  and  ought  to  be,  by  king,  lords,  and 
commons,"  invited  Charles  to  return  and  continue  his  reign, 
proclaimed  as  having  commenced  from  the  day  of  his  father's 
execution.4 

19.  Nothing  is  more  remarkable  in  the  history  of  the 
English  constitution  than  the  persistent  continuity  of  its 
development,  through  which  all  of  the  changes  and  innova- 
tions demanded  by  the  wants  of  a  great  and  growing  nation- 
ality have  been  gradually  brought  about  without  any  open 
break  with  the  past.  The  nearest  approach  to  an  exception 
to  that  general  rule  is  to  be  found  in  the  revolutionary  period, 
beginning  with  the  meeting  of  the  Long  Parliament  and  end- 
ing with  the  Restoration,  the  period  of  upheaval  during  which 


1  Commons1  Journal,  February  11,  13,  15,  17,  21 ;   Price,  pp.  768-773. 

2  The  peers  who  sat  in  the  king's  Parliament  at  Oxford  and  those  whose 
patents  bore  date  after  the  beginning  of  the  civil  war  did  not  demand  admission 
for  the  moment. 

3  Lords'  Journal,  xi.  7,  10. 

*  1660  is  described  in  the  Statute  Book  as  the  twelfth  of  the  reign. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  383 

the  social,  political,  and  religious  forces  that  abide  in  the 
England  of  to-day  broke  the  spell  of  custom  and  tradition 
by  which  the  medieval  church,  the  medieval  monarchy,  and 
the  dying  feudalism  had  so  long  enthralled  the  minds  of  men. 
True  it  is  that  when  Puritanism  laid  down  the  sword,  the 
republican  re'gime  set  up  in  its  name  gave  way  to  a  restora- 
tion of  the  monarchical  system,  not,  however,  in  the  form  in  Monarchy 
which  it  had  been  overthrown,  but  as  purified  and  remodeled  [^thTform* 
by  the  drastic  and  enduring  legislation  enacted  during  the  in  which  'li 

was  over- 
first  ten  months  of  the  Long  Parliament.1    And  apart  from  thrown. 

the  permanent  legal  changes  thus  brought  about  by  positive 

legislation  must  also  be  estimated  the  ultimate  effects  of  many 

new  ideas  then  germinated,  which,  after  having  been  for  a 

time  put  aside,  have  ripened  at  last  into  some  of  the  most 

important  reforms  of  modern  times.     It  is  thus  possible  to 

trace  to  this  period  of  upheaval,  characterized  by  a  freedom 

of  thought  never  before  known,  not  only  the  beginnings  of 

the  great  parties  that  have  ever  since  dominated  the  political 

and  religious  life  of  England,  but  also  the  germs  of  religious  Effect  of 

toleration,   of  electoral   reform,   of  the  cabinet  system,   of  germinated 

modern  taxation,  as  well  as  the  transition  from  the  ancient  Curing  up- 
heaval. 

to  the  modern  military  system.  Only  the  outward  forms  of 
the  work  of  Puritanism  perished  at  the  moment  of  apparent 
overthrow.  While  Cromwell  and  his  republic  passed  away, 
the  indomitable  spirit  of  civil  and  religious  liberty  that  culmi- 
nated in  them  has  lived  on  as  the  advancing  and  reforming 
force  in  English  society  which  expressed  itself  first  in  the 
Revolution  of  1688,  and  finally  in  that  whose  outcome  was 
the  Reform  Bill  of  1832.  It  is,  therefore,  from  this  period 


1  "Whatever  had  been  done  so  far  by  the  Long  Parliament  stood  the  test  of 
time.  The  overthrow  of  the  special  courts,  by  which  the  prerogative  had  been 
defended  under  the  Tudors  and  the  first  two  Stuarts,  together  with  the  aban- 
donment by  the  king  of  all  claims  to  raise  taxes  without  the  consent  of  Parlia- 
ment, was  accepted  as  the  starting  point  of  the  restored  monarchical  constitu- 
tion in  1660."  Gardiner,  History  of  England,  x.  10. 


384 


THE  SCIENCE  OF  JURISPRUDENCE 


Beginnings 
of  the  mod- 
ern consti- 
tution. 


Return  to 
monarchi- 
cal system. 


Charles 's 
declaration 
from  Breda. 


Convention 
declared 
itself  to  be 
"the  two 
houses  of 
Parlia- 
ment." 


of  transition,  from  the  old  to  the  new,  during  which  the  con- 
tinuity of  England's  political  life  was  for  a  moment  suspended, 
not  broken  off,  that  we  can  trace  the  beginnings  of  the  con- 
stitution in  its  modern  form.  When  Cromwell  at  the  height 
of  his  power  attempted  through  the  "Act  of  Government"  to 
return  as  far  as  possible  to  the  forms  of  the  monarchical  system, 
he  clearly  manifested  his  belief  in  the  necessity  of  restoring 
the  ancient  constitution  as  modified  and  purified  in  the  cruci- 
ble of  revolution.  Animated  by  the  same  conservative  spirit, 
the  Convention  Parliament  entered  upon  its  work,  firmly 
resolved  to  restore  "government  ...  by  king,  lords,  and 
commons,"  subject  to  all  the  limitations  imposed  upon  the 
crown  by  the  Long  Parliament  during  the  first  ten  months 
preceding  the  recess  when  its  members  were  able  to  strike  as 
one  man  against  abuses  that  pressed  alike  upon  all,  —  it 
being  at  the  same  time  understood  that  the  commonwealth 
legislation  should  be  treated  as  void,1  excepting  only  such 
parts  as  were  confirmed  by  express  enactment.  Upon  that 
basis  both  parties  united  in  the  invitation  to  Charles  to  return, 
while  he  upon  his  part  bound  himself  in  the  declaration  sent 
to  the  houses  from  Breda  (1)  to  grant  a  free  and  general  par- 
don to  all,  excepting  only  such  as  should  afterward  be  ex- 
cepted  by  Parliament ;  (2)  to  indemnify  the  church  and  the 
royalists  for  injuries  suffered  in  their  estates;  (3)  to  make  a 
satisfactory  settlement  with  the  army;  (4)  and  finally  to 
secure  "liberty  to  tender  consciences,  and  that  no  man  shall 
be  disquieted  nor  called  in  question  for  differences  of  opinion 
in  matters  of  religion  which  do  not  disturb  the  peace  of  the 
kingdom."  2  Before  entering  upon  the  task  of  giving  to  those 
guarantees  the  forms  of  law,  the  Convention  called  into  being 
by  the  Rump  declared,  while  the  bishops  were  still  legally 
excluded  from  their  places  in  the  upper  house,  that  the  Long 


1  Cf.  Stephen,  History  of  the  Criminal  Law,  ii.  466. 

2  Lords'  Journal,  xi.  7,  10. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  385 

Parliament  was  dissolved,  and  that  it  was  in  fact  "the  two 
houses  of  Parliament,  notwithstanding  the  want  of  the  king's 
writ  and  summons,  and  as  if  his  majesty  had  been  present 
in  person  at  the  commencement  thereof,"  *  —  a  declaration 
which  the  succeeding  Parliament  indirectly  discredited  by 
always  describing  the  Convention  in  its  journals  as  "the  last 
assembly."  2  Passing  over  the  fate  of  the  Regicides,  the  dis- 
bandment  of  the  standing  army  and  the  reorganization  of  the 
militia,  the  exclusion  of  commonwealth  clergy  from  church 
livings,  and  the  restoration  and  election  of  bishops,  comment 
must  be  made  as  to  the  reorganization  of  the  finances  on  a 
new  basis. 

After  appropriating  the  customs  to  the  crown's  ordinary 
expenses,3  a  successful  attempt  was  made  to  substitute  a 
new  source  of  income  in  lieu  of  the  sum  the  crown  had  so  long 
received  as  a  part  of  the  ordinary  revenue  from  the  incidents 
of  feudal  tenures,  an  obnoxious  form  of  taxation  that  ceased 
to  be  enforced  during  the  civil  war  after  the  extinction  of  the 
court  of  wards  and  liveries,  which  sat  for  the  last  time  Febru- 
ary 24,  1645.     In  order  to  prevent  a  revival  of  that  institu- 
tion an  act 4  was  passed  abolishing  the  entire  obsolete  system 
of  military  tenures,  together  with  the  court  in  which  they  Military 
were  enforced.     It  was  expressly  declared  that  all  kinds  of  a^iShed. 
tenures  held  of  the  king  or  others  be  converted  into  free  and 
common  socage,  excepting  only  those  in  frankalmoigne,  copy- 
holds, and  the  honorary  services  of  grand  sergeantry.6    At  Old  Tudor 
that  time  it  was  that  the  old  Tudor  subsidy  was  abandoned  *  abandoned. 

1  12  Car.  II.,  c.  1. 

2  The  royalist  lawyers  claimed  that  as  this  Parliament  had  been  called  with- 
out the  king's  writ,  its  acts  could  never  have  any  validity  until  confirmed  by  a 
genuine  Parliament.     Cf .  Life  of  Clarendon,  p.  74. 

»  See  Dowell,  History  of  Taxation,  ii.  16-37. 

*  12  Car.  II.,  c.  24.     Cf.  Digby,  Law  of  Real  Property,  pp.  394-398. 

8  The  duke  of  Marlborough  holds  Woodstock  by  that  tenure  (see  Woodstock 
Manor,  by  Rev.  E.  Marshall) ;  and  the  duke  of  Wellington,  the  Strathfieldsaye 
estate  in  the  same  way  (see  Surge,  Peerage,  s.v.  Wellington). 

8  Dowell,  History  of  Taxation,  ii.  29,  30. 

2c 


386 


THE  SCIENCE  OF  JURISPRUDENCE 


A  system 
of  balance. 


Clarendon. 


Hia  policy 
of  recon- 
struction. 


Second 
Parliament, 
May,  1661. 


Notable 
acts. 


and  its  place  supplied  by  the  new  assessment  system,  first 
employed  by  the  commonwealth,  which,  after  the  famous 
agreement  between  the  lord  chancellor  and  the  archbishop 
Sheldon  in  1664,  was  applied  to  both  clergy  and  laity.  Thus 
while  it  may  be  true  that  the  commonwealth  failed  to  bequeath 
a  single  permanent  organic  law  to  posterity,  the  fact  remains 
that  its  legislation  worked  a  revolution  in  the  methods  of 
English  taxation.  Charles  so  organized  his  first  ministry  as 
to  divide  the  great  offices  of  state  between  the  chiefs  of  the 
Presbyterians  and  the  royalists,  whose  influence  was  nearly 
equal  in  the  popular  branch  of  the  Convention.  In  order  to 
break  up  that  system  of  balance  and  compromise,  Clarendon, 
who  took  the  lead,  dissolved  the  Convention  in  December  1 
and  ordered  new  elections,  which  resulted  in  the  return  of  a 
great  royalist  majority,  confronted  by  a  Presbyterian  oppo- 
sition now  reduced  to  not  more  than  fifty  members.  Thus 
armed,  Clarendon  boldly  entered  upon  the  execution  of  his 
policy  of  reconstruction,  which  contemplated  first  the  rees- 
tablishment  of  the  national  church  upon  a  basis  that  would 
enforce  uniformity  upon  all  who  had  escaped  from  its  fold; 
second,  the  restoration  to  the  crown  of  all  its  prerogatives, 
except  such  as  had  been  extinguished  during  the  first  session 
of  the  Long  Parliament.  Charles's  second  Parliament,  which 
met  on  the  8th  of  May,  1661,  and  which  continued  with  long 
adjournments  and  prorogations  for  nearly  eighteen  years, 
opened  its  session  with  an  order  that  every  member  should 
take  the  communion,  and  that  the  Solemn  League  and  Cove- 
nant should  be  burned  by  the  common  hangman  at  West- 
minster.2 In  harmony  with  that  policy,  Parliament  passed 
an  Act  of  Uniformity,8  the  fourth  since  the  Reformation,  the 

1  Life  of  Clarendon,  p.  76;  Parliamentary  History,  iv.  141,  152. 

2  Commons'  Journal,  May  17,   1661. 

J  13  and  14  Car.  II.,  c.  4.  An  act  was  also  passed  "for  the  well-governing 
and  regulation  of  corporations"  (13  Car.  II.,  st.  2,  c.  1),  imposing  a  religious  test 
intended  to  depress  the  political  influence  of  the  Presbyterians. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  387 

Conventicle  Act  of  1664,1  the  Five-mile  Act  of  1665,2  and  the 
seditious  Conventicle  Act  of  1670.3    In  1665-1666  the  rights 
of  Parliament  to  appropriate  supplies  and  to  audit  public  Rights  of 
accounts  were  revived  as  permanent  principles  in  the  re-  t^alnd* 
stored  constitution.     In  the  mutilated  form   in  which   the  audit' 
pruning  knife  of  the  Long  Parliament  had  left  it,  Charles  II. 
revived  the  privy  council  and,  following  in  the  footsteps  of 
his  predecessors,  he  continued  the  practice  of  selecting  out  of 
what  was  now  a  purely  political  and  administrative  body  an 
inner  group  of  special  advisers,  for  greater  "secrecy  and  dis- 
patch," *  known  for  a  time  as  the  Cabal.     After  the  passage  The 
of  the  Test  Act 5  of  1673,  "  for  preventing  dangers  which  may 
happen  from  popish  recusants,"  Ashley,  one  of  the  Cabal,8  Ashley. 
when  he  learned  the  secret  of  the  king's  religion,  resolved  to 
be  duped  no  longer.     He  united  himself  with  the  opponents  The 
of  the  court,  now  known  as  the  country  party,  and  with  them 
not  only  opposed  the  marriage  of  James  with  a  Catholic  prin- 
cess, but  also  attempted  to  bring  about  an  end  of  the  war 
by  a  parliamentary  declaration  that  no  further  supplies  would 
be  granted  until  additional  guarantees  should  be  given  against 
the  influence  of  Catholic  councilors.     The  leadership  of  the  Danby  and 
court  party  soon  passed  to  Danby,  whose  fatal  letter7  to 
Montagu    in   May,   1678,   resulted   in  his  impeachment  in 
December,  —  a  case  memorable  for  the  five  grave  questions 
of  constitutional  law  involved    in  its  discussion.8    On  the 
24th  of  January,  1679,  the  Parliament  of  1661,  after  a  longer 
unbroken  life  than  any  other  in  English  history,  was  at  last 

1  16  Car.  II.,  c.  4.  a  17  Car.  II.,  c.  2.  3  22  Car.  II.,  c.  1. 

•  See  Todd,  Parliamentary  Government  in  England,  i.  226,   citing  Temple, 
Memoirs,  iii.  45  n. 

•  25  Car.  II.,  c.  2. 

•  Clifford,  Arlington,  Buckingham,  Ashley,  and  Lauderdale,  whose  initials 
happened  to  make  up  the  word  "Cabal." 

7  To  satisfy  Danby 's  scruples  the  king  with  his  own  hand  wrote  as  a  post- 
script, "This  letter  is  writ  by  my  order,  C.R."     See  Danby's  defense,  Memoirs 
relating  to  the  Impeachment  of  the  Earl  of  Danby,  1710,  pp.  151,  227. 

8  See  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  ii.  375-376. 


388  THE  SCIENCE  OF  JURISPRUDENCE 

dissolved,  and  the  impeachment  it  had  begun  against  Danby 
was  revived  in  Charles's  third  Parliament,  which  began  on 
the  6th  of  the  following  March,  determined  to  overthrow  an 
administration  believed  to  be  secretly  friendly  to  the  Catholic 
cause.  When  the  Long  Parliament  abolished  in  1641  the 
Censorship  star  chamber,  it  continued  the  censorship,  and  in  order  the 

of  the  press.  .... 

more  effectually  to  enforce  it  against  its  royalist  and  theo- 
logical adversaries,  it  promulgated  a  set  of  tyrannical  ordi- 
nances that  prompted  Milton1  to  cry  out  in  his  Areopagitica 
that  the  suppression  of  truth  by  the  licenser  was  an  attempt 
to  slay  "an  immortality  rather  than  a  life."  After  the  Res- 
toration the  censorship  was  revived  and  given  a  strictly 
legal  foundation  by  the  Licensing  Act  of  1662,  a  temporary 
statute  kept  in  force  by  renewals  down  to  the  meeting  of 
Parliament  in  March,  1679.  By  that  Parliament,  dominated 
by  Shaftesbury  at  the  head  of  the  country  party,  the  yoke 
was  first  broken  by  a  refusal  to  renew  the  act.2  The  same 
body  that  thus  attempted  to  secure  freedom  of  discussion 
by  refusing  to  renew  the  censorship  of  the  press  passed  the 
famous  "act  for  the  better  securing  of  the  liberty  of  the 
subject,  and  for  prevention  of  imprisonment  beyond  seas," 
Habeas  generally  known  as  the  Habeas  Corpus  Act,3  a  remedial 
measure  intended  to  destroy  all  the  devices  then  employed 
to  deny  to  imprisoned  persons  the  right  to  an  immediate 
examination  by  a  court  of  law  into  the  legality  of  their  im- 
prisonments,—  a  right  inherent  in  the  law  of  the  land  as 
expressed  in  the  Great  Charter,  and  specially  discussed  in  the 
case  of  the  Five  Knights  in  1627.  While  the  Short  Parlia- 

1  Works,  iv.  400,  ed.  1851. 

2  Then  it  was  that  the  twelve  judges  with  Scroggs  at  their  head  declared  it 
to  be  a  crime  by  virtue  of  the  common  law,  regardless  of  the  act  of  Parliament, 
to  publish  any  public  news,  whether  true  or  false,  without  a  royal  license.     Carr's 
case,  1680,  State  Trials,  p.  929.     Not  until  1765  was  that  monstrous  doctrine 
judicially  condemned  by  Chief  Justice  Camden,  in  the  case  of  Entick  v.  Carring- 
ton,  State  Trials,  xix.  1030.     See  also  Broom's  Constitutional  Law  by  Denman, 
p.  555.  «  31  Car.  II.,  c.  2. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  389 

ment  of  1679  was  thus  paving  the  way  for  freedom  of  dis- 
cussion and  fixing  upon  a  new  basis  the  right  to  personal 
freedom,  its  leaders  were  absorbed  with  the  question  of  the 
succession,  which,  after  stirring  the  nation  to  its  depths  during  Question  of 
this  and  the  whole  of  the  succeeding  reign,  culminated  at  8 
last  in  the  Revolution  of  1688.  With  the  great  wave  of 
popular  excitement  put  in  motion  by  the  "popish  plot" 
behind  him,  Shaftesbury  introduced  into  the  house  a  bill  to 
exclude  the  Catholic  James  from  his  right  to  the  crown,  First 
which  was  to  pass  upon  the  death  of  Charles  to  the  next  bui.1" 
Protestant  in  the  line  of  succession.  As  a  counter  blast,  the 
king  sent  to  the  house  a  bill  of  securities  so  framed  as  to 
permit  James  to  succeed  shorn  of  all  real  power  in  church 
and  state,  which  was  to  be  vested  in  the  two  houses.1  Despite 
that  visionary  scheme  the  commons,  after  listening  to  excit- 
ing extracts  tending  to  show  James's  complicity  with  the  plot, 
passed  the  Exclusion  Bill  in  May  by  a  large  majority.2  To 
prevent  further  agitation  of  the  subject  in  the  lords,  Charles 
dissolved  Parliament  on  the  10th  of  July.3  When  the  new 
Parliament,  called  at  the  time  of  the  dissolution,  was  pro- 
rogued, Shaftesbury  organized  a  formidable  agitation,  con- 
sisting of  the  signing  of  petitions  in  every  district,  which 
demanded  that  Parliament  should  be  permitted  to  sit  for  the 
suppression  of  popery  and  despotism.  At  this  time  it  was 
that  the  country  party,  who  were  the  "petitioners,"  came  to  Whigs 
be  known  as  the  Whigs,  and  the  cavalier  or  court  party,  who 
were  the  "abhorrers,"  came  to  be  known  as  Tories.4  When 
Parliament  did  meet  in  October,  1780,  the  house  resolved 
"  that  a  bill  should  be  introduced  to  disable  the  duke  of  York 


1  Temple,  ii.  501 ;  James,  Memoirs,  p.  548 ;  Commons'  Journal,  April  30. 

*  207  against  128.     Commons'  Journal,  May  21. 
1  Temple,  ii.  509-512. 

*  The  former  a  term  of  reproach  originally  applied  to  the  extreme  cove- 
nanters of  the  west  of  Scotland,  and  the  latter  a  term  then  employed  to  describe 
a  native  Irish  outlaw  or  "bogtrotter.V 


390 


THE  SCIENCE  OF  JURISPRUDENCE 


Fifth 
and  last 
Parliament, 
March, 
1681. 


Whig  chiefs 
attacked  by 
the  judicial 
power. 


Charles 
died  a 
Catholic. 


Passive 
obedience 
and  social 
contract 
theory. 


from  succeeding  to  the  imperial  crown  of  England,"  *  which 
was  promptly  passed  without  a  division.2  But  the  House  of 
Lords  still  stood  firmly  by  the  king,  and  the  bill  was  there 
rejected  by  a  vote  of  sixty-three  to  thirty  voices.3  In  Charles's 
fifth  and  last  Parliament,  which  met  in  March,  1681,  at  Ox- 
ford, on  account  of  the  supposed  disloyalty  of  the  capital, 
another  failure  to  settle  the  succession  occurred.  When  the 
leaders  of  the  popular  party  were  deprived,  by  two  dissolu- 
tions,4 of  the  support  of  the  houses,  the  contest  became  an 
unequal  one,  and  the  king,  backed  by  the  tide  of  reaction 
that  now  set  in  in  his  favor,  turned  fiercely  upon  the  Whig 
chiefs,  who  had  tried  in  vain  to  bend  him  to  their  will.  After 
trampling  them  in  the  dust  by  means  of  the  judicial  power,5 
Charles  proceeded  to  make  his  victory  complete  by  directing 
the  same  engine  against  their  strongholds,  the  towns,  now 
called  upon  by  writs  of  quo  warranto  to  show  cause  why  their 
charters  should  not  be  forfeited  by  reason  of  their  abuse  of 
privileges.6  When  in  the  midst  of  such  prosperous  conditions, 
with  his  enemies  at  his  feet,  Charles  was  called  upon  to  meet 
the  inevitable,  he  gave  the  clew  to  his  mysterious  dealings 
with  France,  which  began  in  1670  with  the  making  of  the 
secret  treaty  of  Dover,  by  a  profession  of  the  faith  of  the 
church  of  Rome,  in  communion  with  which  he  died  February  6, 
1685.7 

When  the  University  of  Oxford,  on  the  day  of  Russell's 
execution,  published  its  famous  decree  in  support  of  passive 
obedience,  it  was  at  the  same  time  careful  to  consign  to  ever- 

1  Bailey,  Succession  to  the  English  Crown,  p.  218. 

2  Commons'  Journal,  November  11. 

3  Lords'  Journal,  p.  666. 

*  On  March  28  Charles  dissolved  his  fifth  and  last  Parliament. 

*  As  to  the  trials  growing  out  of   the  Rye  House  Plot,  see  State  Trials,  ix. 
577,  823.     For  a  concise  statement  of  the  legal  questions  involved,  see  Stephen, 
History  of  the  Criminal  Law,  i.  408—412. 

*  See  North,  Examen,  p.  626 ;  State  Trials,  viii.  1039-1340  ;  Bulstrode,  p.  388. 
1  See  the  accounts  in  Lingard,  x.  107-110;   Green,  History  of  the  English 

People,  iv.  65,  66. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  391 

lasting  reprobation  the  doctrine  that  all  civil  authority 
was  originally  derived  from  the  people  through  a  compact, 
express  or  implied,  between  the  prince  and  his  subjects, 
whereby  the  former  might  forfeit  his  right  to  govern  by 
virtue  of  misconduct.1  Without  a  clear  comprehension  of 
these  two  opposing  theories,  the  one  claiming  the  supreme 
political  authority  for  the  crown,  the  other  for  the  legislature, 
it  is  impossible  perfectly  to  understand  the  full  significance 
of  the  acts  that  culminated  in  the  fall  of  the  House  of  Stuart 
through  what  is  generally  known  as  the  glorious  Revolution. 
At  the  outset  James  concealed  his  real  designs  under  a  decla-  James 
ration  to  the  council  in  which  he  said,  "I  shall  make  it  my  Jt^ 
endeavour  to  preserve  this  government,  both  in  church  and  outset- 
state,  as  it  is  now  by  law  established."  2  Charles's  ministers 
were  continued  in  office ;  and  a  Parliament,  assembled  in  May, 
1685,  after  an  interval  of  five  years,  granted  him  for  life  the 
customs  revenue  enjoyed  by  his  predecessors  with  certain 
additions.3  No  change  was  made,  however,  during  the  reign 
in  the  system  of  direct  taxation,  "and,  as  the  general  result  Taxation, 
of  the  arrangements  connected  with  the  revenue  made  under 
the  later  Stuarts,  we  have  (1)  the  continuation  of  the  old 
system  of  port  duties  on  merchandise  imported,  with  addi- 
tional taxes  on  wine,  sugar,  tobacco,  and  French  and  India 
linens  and  silk,  and  brandy;  (2)  the  substitution,  in  lieu  of 
the  revenue  from  the  feudal  tenures  and  in  supplement  to 
the  revenue  from  demesne,  of  certain  items  of  the  common- 
wealth excise;  (3)  the  imposition  of  hearth  money;  and  (4) 
the  suppression  of  the  old  subsidy  in  favor  of  the  common- 
wealth rate  or  assessment,  as  a  tax  for  extraordinary  pur- 
poses." 4  Not  until  after  the  Monmouth  rebellion  and  the 

1  July  21,  1683.     Wilkins,  Concilia,  iv.  610;  Somers,   Tracts,  viii.  420,  424. 
The  decree  was  publicly  burned  by  order  of  the  House  of  Lords  in  1709. 

2  James  II.  3 ;   Fox,  Appendix,  16. 
*  1  James  II.,  cc.  1,4,  5. 

4  Dowell,  History  of  Taxation,  ii.  33. 


THE  SCIENCE  OF  JURISPRUDENCE 


Monmouth 

rebellion 

and 

"bloody 

circuit." 


Test  Act 

assailed. 


Commons 
demand 
recall  of 
commis- 
sions issued 
in  defiance 
of  it. 


Origin  and 
character 
of  dispens- 
ing power. 


"bloody  circuit"  did  James  show  his  hand.  Then,  taking 
advantage  of  the  opportunity  furnished  by  the  revolt,  which 
had  found  the  crown  unprepared  for  invasion,  he  ventured 
to  make  a  great  increase  in  the  standing  army,  and  thus  a 
way  was  opened  for  the  commissioning  of  many  Catholic 
officers,  in  defiance  of  the  terms  of  the  Test  Act  expressly 
forbidding  it.  The  king  therefore  resolved  to  bring  about 
the  repeal  of  that  act,  as  well  as  a  modification  of  the  Habeas 
Corpus  Act,  whose  provisions  had  greatly  hampered  the  crown 
in  commitments  made  in  connection  with  the  recent  rebellion. 
When  Halifax  ventured  to  oppose  his  plans,  James  dismissed 
him  from  the  council;  and  when  Parliament  manifested  the 
same  spirit  of  resistance,  it  was  prorogued  to  the  9th  of 
November.  Upon  the  opening  of  the  second  session  the 
commons  coupled  with  a  grant  for  the  support  of  the  new 
troops  the  condition  that  the  king  should  recall  the  illegal 
commissions  issued  in  defiance  of  the  Test  Act,  lest  the  con- 
tinuance of  the  Catholic  officers  in  the  army  should  "  be  taken 
to  be  a  dispensing  with  that  law  without  act  of  Parliament." 
As  a  counter  blast  to  the  resolute  opposition  of  the  lower 
house,  earnestly  seconded  and  accentuated  by  the  lords,  to 
any  modification  of  a  statute  regarded  by  both  as  the  bulwark 
of  the  Protestant  cause,  James  suddenly  prorogued  Parlia- 
ment to  the  10th  of  February,  1686;  and  although  it  was 
continued  in  existence  by  further  prorogations  for  about 
eighteen  months,  it  was  never  again  permitted  to  meet  during 
the  remainder  of  his  reign.1  Thus  baffled  in  his  attempt  to 
induce  the  houses  to  repeal  a  fundamental  law  fatal  to  his 
designs,  the  king  resolved  to  accomplish  the  same  end  through 
the  exercise  of  an  ancient  prerogative  of  the  crown  generally 
known  as  the  dispensing  power,  which  had  been  immemorially 
employed  either  for  the  exemption  of  particular  persons  for 
special  reasons  from  the  operation  of  penal  laws,  or  for  the 

1  It  was  finally  dissolved  in  July,  1687. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  393 

suspension  of  an  entire  statute  or  set  of  statutes  in  conflict 
with  the  royal  will.  This  exempting  and  suspending  power,1 
which  seems  to  have  had  its  beginning  in  England  in  the 
reign  of  Henry  III.,2  after  a  continuous  conflict  between  the 
crown  and  the  legislature  as  to  its  existence  and  extent,  was 
reduced  to  something  like  definite  form  in  the  reign  of  Charles 
II.,  when  in  the  case  of  Thomas  v.  Sorrel 3  —  wherein  the  jury  Thomas 
returned  a  special  verdict,  on  the  ground  that  they  found  a 
patent  of  9  James  I.  incorporating  the  Vintners'  Company, 
with  leave  to  sell  wine  non  obstante  the  statute  of  7  Edward  VI. 
-  it  was  held  that  "malum  per  se  cannot  be  dispensed  with; 
and  as  to  mala  prohibita,  those  statutes  only  may  be  dis- 
pensed with  which  were  made  for  the  kings'  profit,  but  not 
where  they  are  for  the  general  good,  or  the  good  of  a  third 
party.  He  may  dispense  with  nuisances  and  penal  laws,  by 
which  no  third  party  has  a  particular  cause  of  action."  After 
privately  consulting  the  judges,  patents  under  the  great  seal 
were  issued  to  the  Catholic  officers  of  the  army,  relieving  them 
from  all  penalties  under  the  Test  Act,4  and  authorizing  them 
to  hold  their  commissions,  "  any  clause  in  any  act  of  Parlia- 
ment notwithstanding."  When  the  validity  of  the  dispensa- 
tions contained  in  the  patents  was  tested  in  the  collusive  action 
of  Godden  v.  Hales,5  eleven  judges  out  of  twelve  held  that  Godden 
they  were  valid.  Thus  it  was  that  the  judges,  plausibly  sup- 
ported by  both  parliamentary  and  j  udicial  precedents,  attempted 
to  reverse  the  results  of  the  Revolution  of  1640  by  declaring  Attempt  to 
that  the  supreme  power  of  the  state  was  not  vested  in  the 
king  in  Parliament,  but  in  the  king  in  council.  Armed  with 

1  It  is  said  to  have  been  borrowed  from  the  papal  practice  of  issuing  bulls 
"non  obstante  any  law  to  the  contrary." 

a  As  to  the  rebuke  he  received  from  the  grand  prior  of  the  Hospitallers  when 
he  attempted  to  justify  its  use  by  a  reference  to  the  papal  precedents,  see 
Matthew  Paris,  Hist.  Major.,  p.  854.  Also  the  "Note  to  the  Seven  Bishops' 
Case,"  in  Broom,  Constitutional  Law,  Denman's  ed.,  pp.  495-506. 

»  Vaughan,  pp.  330-339  (25  Car.  II.  1674).  Such  was  the  law  laid  down  by 
Coke,  1  Inst.  120  a ;  3  Inst.  154  (Cox,  Inst.  English  Government,  p.  24,  note  b). 

«  25  Car.  II.,  c.  2.  •  2  Shower,  475 ;  State  Trials,  xi.  1165. 


394 


THE  SCIENCE  OF  JURISPRUDENCE 


Practical 
reestab- 
lishment 
of  High 
Commis- 
sion. 


Theory  of 
its  survival. 


Four 
Catholic 
lords  sworn 
of  the 
council. 


Declaration 
of  Indul- 
gence. 


that  fatal  weapon,  James  now  threw  off  the  mask,  in  order 
vigorously  to  begin  his  attack  upon  the  Established  Church, 
regardless  of  the  promise  made  at  his  accession  to  both  council 
and  Parliament.  In  order  to  provide  an  engine  for  the  coer- 
cion of  all  ecclesiastics  who  might  dare  to  oppose  his  plans, 
James  resolved  upon  the  practical  re  establishment  of  the  Court 
of  High  Commission,  which  had  been  swept  away  by  the  act 
of  the  Long  Parliament,  abolishing  the  entire  system  of 
spiritual  tribunals.  By  the  act  of  13  Charles  II.,  c.  12,  s.  1, 
that  system  was  restored,  excepting  only  the  ex  officio  oath 
and  the  High  Commission.  Upon  the  theory  that  only  the 
extraordinary  powers  of  the  spiritual  courts  had  thus  perished, 
the  king,  after  consultation  with  the  judges,  issued  a  com- 
mission in  July,  1686,  to  a  new  "Court  of  Commissioners  for 
Ecclesiastical  Causes,"  with  Jeffreys,  now  lord  chancellor,  at 
its  head,  which  as  a  permanent  court,  was  endowed  with 
ordinary  powers  to  hear  ecclesiastical  causes,  and  to  pro- 
nounce ecclesiastical  censures.1  A  few  days  later  four  Catho- 
lic lords  were  sworn  of  the  privy  council  to  strengthen  the 
royal  hands  against  the  Tory  councilors,  opposed  to  the  repeal 
of  the  Test  Act.  At  their  head  stood  Rochester,  who  was 
dismissed  from  office  early  in  January,  1687,  as  evidence  of 
the  fact  that  no  one  opposed  to  the  king's  ecclesiastical  policy 
could  hope  to  participate  in  the  administration  of  government. 
Thus  bereft  of  the  support  of  Tory  churchmen,  James  sought 
popular  support  from  Protestant  nonconformists  through  a 
Declaration  of  Indulgence.  To  obtain  such  a  compliant  Par- 
liament as  would  lend  itself  to  his  designs  now  became  the 
primary  object  of  his  policy.  But  so  unsuccessful  were  his 
efforts  in  that  direction  that  the  elections  fixed  for  February, 
1688,  had  to  be  adjourned.  When  the  archbishop  and  six 

1  When  to  the  jurisdiction  of  this  court,  called  in  derision  Congregatio  de 
Propaganda,  Compton  filed  a  plea,  it  was  treated  with  contempt,  while  he  was 
suspended  and  the  administration  of  his  diocese  handed  over  to  others.  State 
Trials,  xi.  1156-1166 ;  History  of  King  James's  Ecclesiastical  Commissioners,  p.  2. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  395 

of  his  suffragans  ventured  to  petition  the  king  to  relieve  the 

clergy  from  reading  the  republication  of  the  Declaration  of 

Indulgence,  the  seven  were  committed  to  the  Tower  to  await 

a  trial  for  seditious  libel  which  began  in  June.1    After  a  night  Trial  of 

passed  in  stormy  debate  the  jury  rendered  a  verdict  of  not  Bedmousfor 

guilty,   received   with   an   enthusiastic   shout   that   swelled  JJ^»  June» 

through  the  capital  and  adjoining  hamlets  until  it  reached  the 

king  himself  at  Hounslow  Heath,  where  in  the  midst  of  his 

standing  army  he  thus  received  the  first  warning  of  the  mighty 

change  soon  to  come.2    Two  days  after  the  bishops  were 

committed  to  the  Tower  an  event  occurred  which  precipitated 

the  Revolution.     From  the  time  of  James's  conversion  to 

Catholicism  the  nation  had  been  pacified  by  the  assurance 

that  the  crown  at  his  death  would  pass  first  to  Mary  and  then 

to  Anne,  the  two  surviving  children  of  his  first  marriage  with 

Anne  Hyde.     On  the  10th  of  June,  Mary  of  Modena,  the 

Catholic  princess  whom  James  had  married  two  years  after 

Anne's  death,  gave  birth  to  a  son,  the  ill-fated  prince  gen-  Birth  of  a 

erally  known  as  James  III.,  or  the  old  Pretender.     Thus  it  to 


was  that  the  prospect,  so  long  assured,  of  a  Protestant  suc- 
cession was  suddenly  blasted  by  the  advent  of  a  Catholic 
heir,  just  at  the  moment  when  James's  fierce  and  persistent 
attack  upon  the  church  he  had  promised  to  defend  was  fast 
driving  the  nation  to  open  resistance.     In  the  presence  of 
the  emergency  thus  presented  the  leaders  of  the  Protestant  Protestant 
cause  resolved  to  assume  that  the  birth  of  a  male  heir  to  James  credited  * 
was  a  deliberate  invention,  and  then  to  invite  William  to  the  fact* 
come  in  arms  not  only  for  the  defense  of  English  liberty  and 
religion,  but  also  for  the  restoration  of  the  reign  of  law  which 
had  broken  down  under  the  king's  attempt  to  coerce  the  church 

1  State  Trials,  xii.  183.     See  also  Broom's  Constitutional  Law,  Denman's  ed., 
pp.  406-519  ;   Burnet,  iii.  222-226. 

2  Barillon  in  his  letter  to  Louis  (July  12)  said  :  "La  joie  et  les  acclamations 
ont  e'te'  fort  grandes  &  Westminster,  quand  on  a  su  la  decision.  .  .  .     La  popu- 
lace brula  une  representation  du  pape." 


396 


THE  SCIENCE  OF  JURISPRUDENCE 


Invitation 
to  William, 
June  30. 


He  landed 
at  Torbay, 
Novem- 
ber 5. 


Second 

Convention 

Parliament. 


Absence  of 
the  king's 
writ. 


and  remodel  the  magistracy  in  open  defiance  of  existing  stat- 
utes. Under  the  pressure  of  the  common  danger  Tories  and 
Whigs,  high  churchmen  and  nonconformists,  putting  aside 
for  the  moment  all  differences,  drew  together;  and  on  the 
30th  of  June  the  leaders  of  the  coalition  subscribed  in  cipher 
an  invitation  to  William  to  come  at  once  at  the  head  of  an 
army  strong  enough  to  justify  his  friends  in  rising  to  sustain 
him.1  In  due  time  William's  declaration  arrived,  promising 
freedom  of  conscience  to  Catholics  and  toleration  to  Protestant 
nonconformists,  and  demanding  the  calling  of  a  free  Parlia- 
ment for  the  settlement  of  the  succession,  and  for  the  re- 
establishment  of  English  freedom  and  religion  upon  a  secure 
basis.2  On  the  5th  of  November  the  prince  landed  at  Torbay 
at  the  head  of  a  force  including  representatives  from  every 
part  of  the  Protestant  world,  which,  after  a  momentary 
hesitation,  was  so  swelled  by  adherents  from  every  quarter 
as  to  make  its  advance  a  peaceful  and  triumphant  progress. 

As  there  was  no  Parliament  in  existence  when  James's  first 
flight  suspended  for  a  time  all  regular  government,  it  was 
difficult  to  determine  how  to  assemble  the  estates  without 
the  king's  writ,  from  which,  according  to  the  immemorial 
legal  theory,  Parliament  derived  its  being  and  its  powers. 
For  the  third  time  since  the  Conquest  the  English  people  were 
called  upon  to  set  aside  that  theory  in  favor  of  the  earlier 
doctrine  that  Parliament  really  derives  its  existence  and  au- 
thority from  the  call  of  the  nation  from  which  its  life  is 
drawn.8  The  Convention  Parliament  that  secured  to  Charles 
II.  the  right  to  reign  was  called  not  by  a  royal  writ,  but  by  the 
authority  of  the  Long  Parliament,  which  had  protected  itself 

1  Burnet,  iii.  265. 

2  Dumont,  vol.  vii.,  pt.  ii.,  pp.  198,  205.     He  was  "called  in  to  vindicate  prac- 
tically those  maxims  of  liberty  for  which,  in  good  and  evil  days,  England  had 
contended  through  so  many  centuries."     Taylor,  Book  of  Rights,  p.  211. 

*  As  to  the  constitution  of  the  Parliament  of  1399,  wherein  Richard  II.  was 
deposed  and  Henry  IV.  elected,  see  Taylor,  The  Origin  and  Growth  of  the  English 
Constitution,  ii.  407. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  397 

by  positive  law  against  either  a  prorogation  or  dissolution 

without  its  own  consent.     William  was  now  called  upon  to 

convene  the  estates  without  the  aid  either  of  the  king's  writ 

or  the  mandate  of  a  preceding  Parliament.     In  the  presence 

of  such  difficulties,  he  resolved,  by  virtue  of  his  own  de  facto 

authority,  to  call  together  representatives  who  had  in  time 

past  been  honored  with  the  confidence  of  the  nation.     By  Expedients 

their  advice  he  issued  circular  letters  to  all  the  constituent  b-y^mLm. 

bodies  of  the  kingdom  inviting  them  to  send  up  as  usual  per- 

sons to  represent  them  in  a  convention  of  estates  to  be  held 

at  Westminster  on  the  22d  of  January,  1689.1    The  elections 

were  rapidly  concluded,  and  at  the  appointed  time  the  peers, 

about  a  hundred  in  number,  met  under  the  presidency  of 

Halifax,  while  the  commons  organized  themselves  by  calling 

Powle  to  the  chair.     In  the  course  of  its  proceedings  the  as-  Convention 

sembly  proclaimed  itself  to  be  "  the  two  houses  of  Parliament, 

and  so  shall  be  and  are  hereby  declared  enacted  and  adjudged  j 

to  be  to  all  intents,  constructions,  and  purposes  whatsoever  Pariia- 

merit." 

...  as  if  they  had  been  summoned  according  to  the  usual 
form."2  However,  notwithstanding  that  declaration,  the 
succeeding  Parliament  deemed  it  necessary  to  pass  an  act 
declaring  the  action  and  proceedings  of  its  predecessor  valid.8 
The  high  function  the  Convention  was  first  called  upon  to  Deposition 
perform  involved  no  less  than  the  deposition  of  James,  who  an 


had  declared  that  he  had  left  the  realm  only  because  his  life  of  ]v.iiliam 

»  and  Mary. 

was  in  danger,  and  the  election  of  William  and   Mary  to 
the  vacant  throne,  —  a  proceeding  that  would  have  been  at 
once  natural   and  easy  had  the   mind  of  the  nation  been 
swayed  by  the   obsolete  and  forgotten  precedents  of  pre-  pre- 
Norman  times  under  which  the  witan  of  Wessex  once  deposed  pr<e^edents. 

'Clarendon,  Diary,  December  24,  1688;  Parliamentary  History,  v.  62; 
London  Gazette,  December. 

2  1  Will,  and  Mary,  sess.  1,  c.  1. 

*  See  Commons'  Journal,  April  8  and  9,  1690.  Although  Macaulay  com- 
ments at  length  upon  the  passage  of  the  confirming  act  (ii.  160),  Freeman  says 
no  such  act  was  passed.  Growth  of  the  English  Constitution,  p.  137. 


398 


THE  SCIENCE  OF  JURISPRUDENCE 


Feudal 
theory  of 
kingship. 


Supple- 
mented by 
divine  right 
and  passive 
obedience. 


Division  of 
parties. 


Appeal  to 
philosophy 
of  Hobbes. 


Sigeberht  from  the  royal  dignity  and  elected  his  relative, 
Cynewulf,  in  his  stead.1  The  fact  was,  however,  that  this 
early  conception  of  an  elective  and  deposable  king  had  been 
supplanted  ages  before  by  the  hereditary  theory,  which,  under 
the  influence  of  feudal  ideas,  gave  birth  to  the  doctrine  that 
the  throne  can  never  be  vacant  because  the  king  never  dies; 
that  there  can  be  no  such  thing  as  an  interregnum,  because 
the  reign  of  the  heir  begins  the  moment  that  of  his  predecessor 
is  ended.  To  that  doctrine,  which,  according  to  the  claim  of 
Edward  IV.,  constituted  such  an  indefeasible  hereditary  title 
as  Parliament  can  neither  ignore  nor  set  aside,  James  I.  added 
the  claim  of  divine  right,  supplemented  in  the  reign  of  Charles 
II.  by  the  religious  dogma  of  non-resistance  or  passive  obe- 
dience, invented  by  servile  churchmen  who  were  the  first  to 
repudiate  it.  Such  was  the  nature  of  the  kingship  with 
which  James  claimed  to  be  clothed  when  he  and  his  infant 
heir  were  forcibly  driven  from  the  palace  of  their  ancestors 
to  seek  shelter  in  a  foreign  land.  The  main  body  of  the  con- 
vention was  divided,  as  was  the  nation  itself,  into  two  parties, 
Tories  and  Whigs,  the  former  being  in  the  majority  in  the 
upper,  the  latter  in  the  lower  house.  When  on  the  28th  of 
January,  1689,  the  battle  began  in  the  commons,  the  Whigs, 
who  were  thus  charged  with  the  responsibility  of  power, 
attempted  to  solve  all  theoretical  difficulties,  not  by  appealing 
to  the  simple  yet  obsolete  precedents  of  earliest  times,  but 
by  boldly  employing  the  new-fangled  political  philosophy 
of  Hobbes,  resting  upon  the  unhistorical  assumption  of  an 
original  contract  between  the  nation  and  the  king,  under  which 
the  latter  might  forfeit  his  rights  by  misconduct.  By  the  aid 
of  that  theory  the  popular  party  was  able  to  unite  every  ele- 
ment of  the  opposition  to  James,  in  passing  without  a  division 
the  famous  resolution  declaring  "That  King  James  II.,  having 
endeavored  to  subvert  the  constitution  of  the  kingdom  by 

1  English  Chronicle,  a.  755 ;  Flor.  Wig.  a.  755. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  399 

breaking   the  original  contract  between  king  and  people,  and  Social 
having,  by  the  advice  of  Jesuits  and  other  wicked  persons,  theory°em- 


violated  the  fundamental  laws,  and  withdrawn  himself  out 
of  the  kingdom,  has  abdicated  the  government,  and  that  the 
throne  is  thereby  vacant."  After  sharp  opposition  the  lords 
finally  agreed  to  adopt  the  original  resolution  of  the  commons 
without  amendment;  and  that  action  was  followed  by  a 
resolution  in  which  the  upper  house  declared  that  the  prince 
and  princess  of  Orange  should  be  proclaimed  king  and  queen 
of  England,  and  of  all  dominions  thereto  belonging.1  The  Commons 
commons  refused,  however,  to  concur  in  such  a  hasty  settle- 


ment  of  the  crown  until  a  formal  document  could  be  drawn  ilo.n  ?f  . 

principles. 

up  setting  forth  in  clear  and  solemn  form  the  fundamental 

principles  of  the  constitution  in  accordance  with  which  the 

new  dynasty  was  expected  to  govern.2    That  duty  was  in- 

trusted to  a  committee  whose  chairman  was  John  Somers, 

a  young  barrister,  who  had  distinguished  himself  in  the  trial 

of  the  bishops;    and  after  some  unimportant  amendments 

by  the  lords,  the  Declaration  of  Right,  which  thus  came  into  Declaration 

being,  was  approved  by  both  houses  on  the  12th  of  February.3 

The  Declaration  of  Right  thus  put  forth  was  a  summing  A  summing 
up  in  a  dogmatic  form  of  that  code  of  positive  law  regulating  Law  of  the 
the  prerogatives  of  the  crown,  the  privileges  of  Parliament,  <'ons>t;ltu- 
and  the  liberty  of  the  subject,  now  generally  known  as  "the 
Law  of  the  Constitution,"  *  as  distinguished  from  that  body 
of  political  maxims,  of  silent  understandings,  undefined  either 
by  common  or  statute  law,  which  have  been  invented  since 
the  beginning  of  the  reign  of  William  III.,  as  the  most  con- 
venient means  of  regulating  the  changed  relations  of  the  two 

1  The  first  proposition  was  carried  by  a  majority  of  four  ;   the  second,  by  a 
majority  of  about  twenty.     Lords'  Journal,  pp.  118,  119;   Clarendon,  Diary, 
February  6  ;    Dalrymple,  Appendix,  340. 

2  Parl.  Hist.  v.  52,  58  ;   Burnet,  p.  822. 

*  Commons'  Journal,    February  4,  8,  11,  12;    Lords'  Journal,    February  9, 
11,  12,  1688-1689.     On  the  12th  of  February  Mary  arrived  in  England. 

*  See  Dicey,  Introduction  to  the  Study  of  the  Law  of  the  Constitution,  1893. 


400  THE  SCIENCE  OF  JURISPRUDENCE 

houses  to  each  other  and  of  the  crown  to  both,  necessarily 
resulting  from  the  transfer  through  the  Revolution  of  the  sov- 
ereignty of  the  state  from  the  crown  to  the  legislature.  In 
that  practical  temper  which  has  always  characterized  English- 
men on  such  occasions,  the  Declaration  entered  directly  upon 
the  question  of  recent  grievances  by  asserting  that  King 
Recent  James  II.,  misled  by  evil  counselors,  did  endeavor  to  sub- 
feifgious68'  vert  and  extirpate  the  Protestant  religion  and  the  laws  and 
wo*  defined  liberties  of  the  kingdom  by  an  abuse  of  the  dispensing  power ; 
by  erecting  the  court  of  commissioners  for  ecclesiastical 
causes;  by  denying  Parliament's  exclusive  right  of  taxation; 
by  maintaining  without  its  consent  a  standing  army  in  time 
of  peace,  and  by  quartering  soldiers  contrary  to  law ;  by  dis- 
arming good  Protestants  when  papists  were  armed  and  em- 
ployed contrary  to  law;  by  violating  the  freedom  of  election 
of  members  to  serve  in  Parliament;  by  prosecutions  in  the 
king's  bench  for  matters  cognizable  only  in  the  houses ;  by  the 
return  of  partial  and  corrupt  juries,  especially  in  trials  for 
high  treason;  by  the  exaction  of  excessive  bail;  by  the  im- 
position of  excessive  fines  and  the  infliction  of  cruel  and  illegal 
punishments;  and  finally  by  promising  away  estates  as  for- 
feited prior  to  the  conviction  of  the  persons  to  whom  they 
belonged.  In  order  to  put  an  end  to  these  mighty  evils,  the 
prince  of  Orange  had  come  as  "the  glorious  instrument  of 
delivering  this  kingdom  from  popery  and  arbitrary  power." 
Therefore,  in  order  to  make  that  deliverance  perpetual,  the 
Summary  new  sovereigns  were  called  upon  to  join  the  estates  in  declar- 
dediared  mg  illegal  the  suspending  and  dispensing  powers,  the  com- 
uiegai.  mission  for  ecclesiastical  causes,  all  forms  of  conciliar  taxa- 
tion, all  attempts  to  deny  the  rights  of  petition,  a  standing 
army  in  time  of  peace,  denial  of  the  right  to  bear  arms,  denial 
of  free  elections,  denial  of  freedom  of  speech,  excessive  bail 
and  cruel  punishments,  juries  improperly  chosen,  promises 
of  forfeiture  before  conviction,  and  the  denial  of  frequent 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  401 

parliaments.  The  throne  was  then  declared  vacant,  and 
William  and  Mary,  king  and  queen,  during  their  lives,  and  Pariia- 
the  life  of  the  survivor  of  them.  In  default  of  heirs  the  crown 
was  to  pass  to  Anne  of  Denmark  and  the  heirs  of  her  l  body. 
Thus  the  indefeasible  hereditary  theory  was  set  aside  in  favor 
of  the  doctrine  that  an  English  sovereign  is  now  as  much  the 
creature  of  an  act  of  Parliament  as  the  pettiest  taxgatherer 
in  the  realm.  After  a  recess  the  act2  was  passed  turning  the 
Declaration  of  Right  into  a  formal  Bill  of  Rights,  whereby  two  A  formal 
somewhat  important  additions  were  made  as  new  barriers 


against  a  possible  Catholic  sovereign,  and  against  the  dis- 
pensing power.     No  attempt  was  made,  however,  to  secure 
freedom  of  speech  and  of  the  press  to  the  nation  as  a  whole.  Freedom 
The  original  instrument,  which  entirely  ignored  the  right 
last  named,  only  guaranteed  the  former  so  far  as  proceedings 
in  Parliament  were  concerned.3    In  like  manner  the  right  to 
regulate  English  commerce,  which  the  houses  shortly  after-  Regulation 
ward  silently  claimed  and  obtained  in  the  discussions  on  merce!1" 
the  charter  granted  to  the  East  India  Company,  was  left  as  of 
old  to  the  control  of  the  crown.4    In  order  to  give  the  highest 
possible  security  to  the  sovereignty  with  which  the  Revolu- 
tion had  crowned  them,  the  houses  resolved  to  assume  more 
perfectly  than  ever  before  the  control  of  both  the  purse  and 
the  sword.     The  power  to  withhold  supplies  was  emphasized,  Supply  and 
while  the  principle,  imperfectly  recognized  in  the  reign  of 
Charles  II.,  that  money  voted  by  Parliament  could  be  appro- 
priated only  by  its  direction  to  certain  specific  heads  of  ex- 
penditure, has  since  the  Revolution  become  the  settled  usage. 
Thus  came  into  being  at  that  time  what  is  known  as  the  "Civil 
"Civil  List,"  a  term  originally  used  to  designate  the  sources  Llst' 
of  revenue  appropriated  to  produce  a  fund  out  of  which  was 

"And  for  default  of  such  issue  to  the  heirs  of  the  body  of  the  said  prince  of 
Orange."     Lords'  Journal,  v.  125. 

a  1  Will,  and  Mary,  sess.  2,  c.  2.  *  §  9. 

*  Cf  .  Green,  History  of  the  English  People,  iv.  46. 
2o 


402  THE  SCIENCE  OF  JURISPRUDENCE 

to  be  defrayed  the  expenses  of  the  royal  household  and  of 
certain  civil  officers,  such  as  judges,  ambassadors,  and  the 
like,  of  which  a  list  had  been  laid  before  the  house.1  The 

Annual         necessary  result  of  that  arrangement  was  annual  appropriation 

ttat^biiis*  bills,  into  which  were  introduced  clauses  forbidding  the  lords 
of  the  treasury  under  heavy  penalties  to  order  by  their  war- 
rants the  payment  of  any  moneys  in  the  exchequer  except 
such  as  were  specially  appropriated.  Hence  the  rigid  legal 
rule  of  the  modern  constitution  which  provides  that  not  a 
penny  of  the  national  revenue  can  be  expended  without  the 
authority  of  some  act  of  Parliament.2  The  grant  of  the  port 
duties  to  William  for  four  years  was  soon  followed  by  the  re- 
solve to  make  the  vote  of  supplies  an  annual  one,  and  so  it 
came  to  pass  that  Parliament  must  meet  at  least  once  a  year 
in  order  to  keep  the  machinery  of  the  state  in  motion.  As 
an  addition  to  the  perfect  control  over  the  executive  power 
thus  practically  vested  in  the  House  of  Commons  was  enacted 

Triennial  the  Triennial  Bill  of  1694,3  forbidding  the  existence  of  a  Parlia- 
ment for  more  than  three  years.  The  statesmen  of  the  Revo- 
lution, imbued  with  the  hatred  of  a  standing  army  born  in  the 
days  of  the  commonwealth,  resolved,  after  providing  that 
no  such  thing  should  exist  in  time  of  peace  without  the  consent 
of  Parliament,  to  make  its  support  and  discipline  at  all  times 

Mutiny  Act  depend  absolutely  upon  the  will  of  that  body.  With  that 
end  in  view  was  passed  the  first  Mutiny  Act  of  1689,4  whose 
object  and  principles  are  the  same  as  the  Army  Act,  1881,5 
under  which  the  regular  army  is  now  substantially  governed. 

Two  vital  The  two  vital  principles  underlying  that  system  are  these : 
first,- that  no  pay  can  be  issued  to  the  troops  without  a  pre- 

1  Dowell,  History  of  Taxation,  ii.  43,  44 ;   Parliamentary  History,  p.  193. 

2  "This  authority  may  be  given  by  a  permanent  Act,  as,  for  example,  by  the 
Civil  List  Act,  1  and  2  Viet.,  c.  2,  or  by  the  National  Debt  and  Local  Loans  Act, 
1887 ;  or  it  may  be  given  by  the  Appropriation  Act,  that  is,  the  annual  Act  by 
which  Parliament 'appropriates' or  fixes  sums  payable  to  objects  .  .   .  not  pro- 
vided for."     Dicey,  The  Law  of  the  Constitution,  p.  295. 

»  6  Will,  and  Mary,  c.  2.      *  1  Will,  and  Mary,  c.  5.     8  44  and  45  Viet.,  c.  58. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  403 

vious  appropriation  by  Parliament ;    second,  that  no  officer  or 
soldier  can  be  punished  for  disobedience,  nor  any  court  martial 
held,  save  through   an   annual   reenactment  of  the  Mutiny 
Bill.     A  soldier,  although  a  member  of  a  standing  army,  is  Every 
still  a  subject  endowed  with  all  the  rights  and  duties  of  an  citizen.* 
ordinary  citizen,  and  as  such  is  amenable  to  "the  ordinary 
process  of  law."  l    It  is,  therefore,  only  in  his  military  capac- 
ity, which  is  simply  superimposed  upon  his  civil,  that  he  can 
be  tried  and  punished  by  court  martial.    The  civil  courts, 
however,  reserve  the  right  to  determine  what  persons  are 
subject  to  the  military  law;   and  in  the  event  that  either  an 
officer  or  a  court  martial  exercises  authority  over  a  soldier  not 
authorized  by  that  law,  such  courts  also  reserve  the  right  of  Court 
supervision,  which  may  be  enforced  by  prohibition,  certiorari,  subject  to 
or  habeas  corpus,  according  to  the  facts  of  the  particular  case.2  review- 
Despite  such  supplementary  legislation  the  deficiencies  of  Act  of 
the  Bill  of  Rights,  made  obvious  by  time  and  circumstances,  capstone  of 
were  never  fully  remedied  until  the  passage  in  1701  of  the  Revo1 
famous  Act  of  Settlement,3  the  constitutional  capstone  of  the 
Revolution.     In  December,  1694,  Queen  Mary  had  been  car- 
ried off  by  smallpox,  and  in  July,  1700,  the  duke  of  Gloucester 
had  died,  leaving  Anne  childless.     Ignoring  James's  son,  the 
next  in  line,  according  to  the  ordinary  rules,  were  the  descend- 
ants  of   Henrietta  of  Orleans,  the  daughter  of  Charles  I., 
whose  daughter,  Anna  Maria,  had  married  the  Catholic  duke 
of  Savoy  in  April,  1694.4    Under  that  condition  of  things 
Parliament  resolved  to  cling  to  the  Stuart  blood,  and  yet 

'The  first  Mutiny  Act  so  provided  expressly  (s.  6).  Cf.  Clode,  Military 
Forces  of  the  Crown,  i.  499,  500.  A  soldier  is  also  subject  to  the  same  criminal 
liability  as  a  civilian. 

2  Manual  of  Military  Law,  pp.  177,  178.  "It  should,  however,  be  noted  that 
the  courts  of  law  will  not,  in  general  at  any  rate,  deal  with  rights  dependent  on 
military  status  and  military  regulations."  Dicey,  The  Law  of  the  Constitution, 
p.  287,  note  1.  3  12  and  13  Will.  Ill,  c.  2. 

4  "The  duchess  of  Savoy  entered  an  unavailing  protest  against  the  new  set- 
tlement. She  lived  to  see  it  take  effect,  dying  on  the  26th  of  August,  1728." 
Bailey,  p.  233. 


404 


THE  SCIENCE  OF  JURISPRUDENCE 


Source  of 
title  of 
House  of 
Hanover. 


Eight 
additional 
articles  for 
security  of 
"religion, 
laws,  and 
liberties." 


Toleration 
Act  and 
slow  growth 
of  religious 
liberty. 


secure  a  Protestant  succession,  by  vesting  the  crown  in  Sophia, 
wife  of  the  late  and  mother  of  the  then  elector  of  Han- 
over, who  was  nearly  the  youngest  of  the  thirteen  children 
of  Elizabeth,  queen  of  Bohemia,  and  daughter  of  James  I. 
The  crown  was  to"  continue  to  the  said  most  excellent  Princess 
Sophia  and  the  heirs  of  her  body,  being  Protestants,"  after 
the  death  of  William  and  Anne,  and  in  default  of  their  issue. 
In  order  more  perfectly  to  secure  the  "religion,  laws,  and  lib- 
erties," of  the  realm  after  the  accession  of  the  new  dynasty 
thus  created,  it  was  deemed  necessary  to  embody  in  the  Act 
of  Settlement  itself  eight  additional  articles  that  were  to  take 
effect  only  after  the  happening  of  that  event.  The  four  that 
became  permanent  elements  in  the  constitution  provide: 
(1)  that  whosoever  shall  come  to  the  possession  of  the  crown 
shall  be  in  communion  with  the  state  church;  (2)  that  no  war 
shall  be  undertaken  for  dominions  not  belonging  to  the  British 
crown;  (3)  that  the  judges,  whose  salaries  shall  be  ascer- 
tained and  established,  shall  hold  during  good  behavior, 
subject  to  removal  upon  the  address  of  both  houses  of  Par- 
liament; (4)  that  no  pardon  under  the  great  seal  shall  be 
pleaded  to  an  impeachment  by  the  House  of  Commons.  While 
the  parliaments  of  William  and  Mary  thus  attempted  to  secure 
by  adequate  legislation  the  political  liberty  he  had  promised 
to  reestablish,  they  undertook,  in  a  narrow  and  jealous  spirit, 
to  guarantee  religious  toleration  to  the  great  body  of  non- 
conformists who  had  united  with  churchmen  in  the  common 
struggle  against  Catholicism.  William  failed  to  secure  either 
the  passage  of  a  Comprehension  Bill  or  the  repeal  of  the  Cor- 
poration Act,  while  the  Toleration  Act  of  1689  *  was  for  the 
benefit  of  Protestant  dissenters  only.  Not  until  1828  was 
Lord  John  Russell  able  to  bring  about  at  last  the  civil  enfran- 
chisement of  dissenters  through  the  repeal  of  the  Test  and 
Corporation  Acts,  by  virtue  of  which  civil  disabilities  were 

»  1  Will,  and  Mary,  c.  18. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  405 

still  imposed.1  Two  acts  of  Elizabeth  —  one  of  1581,  the 
other  of  1593  —  that  continued  nominally  in  force,  subject 
to  the  provisions  of  the  Toleration  Act,  were  repealed  in  1844  ;2 
and  that  section  of  her  Act  of  Uniformity  imposing  a  penalty 
of  a  shilling  for  non-attendance  at  church  was  repealed  in  1846.3 
The  Toleration  Act  expressly  provided  that  its  terms  should  Emanci- 
not  be  so  construed  as  "to  give  ease,  benefit,  or  advantage  catholics, 
to  any  papist  or  popish  recusant  whatever";  and  in  1700  a 
penal 4  law  against  Catholics  was  passed  so  severe  in  its  terms 
as  to  render  its  enforcement  impossible.  Despite  the  acts 
of  1778 5  and  1791 6  for  the  emancipation  of  Catholics,  they 
continued  subject  to  many  disabilities,  which  deprived  them 
not  only  of  the  right  of  holding  office,  but  also  of  sitting  in 
Parliament  down  to  the  year  1829,  when  a  Tory  ministry  passed, 
with  the  aid  of  the  Whigs,  and  in  order  to  prevent  civil  war, 
the  Catholic  Emancipation  Act 7  of  that  year,  by  which  all 
such  disabilities  were  swept  away.  The  history  of  the  process 
through  which  religious  liberty  was  thus  gradually  established 
in  England  by  the  repeal  of  the  disabling  acts  directed  against 
all  nonconformists,  whether  Catholic  or  Protestant,  has  Stephen's 
been  epitomized  as  follows:  "The  Revolution  of  1688  pro-  epl ' 
duced  a  narrowly  limited  toleration,  in  the  strict  sense  of  the 
word,  for  Protestant  Dissenters.  '  You  are  a  set  of  narrow- 
minded  bigots,  but  we  will  not  punish  you  for  it,'  was  the  lan- 
guage of  the  legislature  toward  them.  The  Roman  Catholics, 
on  the  other  hand,  were  treated  as  men  who  would  be  rebels 
if  they  dared,  and  were  placed  under  laws  nominally  harsher 
than  any  which  had  been  in  force  before.  The  laws,  however, 
were  not  executed  and,  after  being  practically  repealed  in 
1791  and  1829,  were  formally  repealed  in  1844  and  1846."  8 
Reference  has  been  made  to  the  old  Tudor  subsidy,  super-  and  finance. 

1  9  Geo.  IV.,  c.  17.  2  7  and  8  Viet.  102.  3  9  and  10  Viet.,  c.  59. 

4  11  and  12  Will.  Ill,  c.  4.     For  a  commentary  upon  it,  see  Burnet,  iii.  253. 
•  18  Geo.  III.,  c.  60.  •  31  Geo.  III.,  c.  32.  »  10  Geo.  IV.,  c.  7. 

8  Stephen,  History  of  the  Criminal  Law,  ii.  496. 


406 


THE  SCIENCE  OF  JURISPRUDENCE 


Subsidy 
superseded 
by  assess- 
ments. 


The  rate 
system. 


Origin  of 
land  tax. 


Origin  of 

national 

debt. 


Permanent 
income  tax. 


seded  during  the  great  civil  war  by  a  system  of  monthly 
assessments,  under  which  a  fixed  sum  to  be  raised  was  par- 
titioned between  the  several  counties  and  towns  wherein 
the  taxpayers  were  rated  by  the  local  authority  at  what  they 
were  really  worth.  But  that  method,  emphasized  in  1688, 
became  inequitable  by  reason  of  the  "exorbitant  inequality 
of  the  old  proportions  of  charge,  both  between  county  and 
county,  division  and  division,  and  parish  and  parish." l 
Therefore,  in  1689,  a  new  plan  was  adopted,  consisting  of  a 
rate  of  so  many  shillings  in  the  pound  in  respect  to  incomes 
derived  from  personal  property,  offices  and  employment,  and 
lands;  and  in  1692,  a  rate  then  imposed  of  4s.  in  the  pound 
produced  about  £1,922,000.  When  that  sum  began  to  decline 
through  imperfect  assessments,  Parliament  "abandoned  the 
principle  of  a  rate  by  fixing  what  a  rate  should  produce."  2 
Such  was  the  origin  and  character  of  the  land  tax  of  William's 
reign,  which  continued  in  force  down  to  1798,  when  Pitt,  prior 
to  the  introduction  of  his  income  tax,  made  it  perpetual  at 
4s.  in  the  form  of  a  redeemable  rent  charged  on  the  several 
districts.  His  famous  income  tax,  first  levied  in  1798,  con- 
sisted of  the  imposition  of  a  tax  of  ten  per  cent  upon  all  in- 
comes arising  from  annual  rent  and  profits.  Though  levied 
as  a  war  tax  which  was  to  cease  at  the  declaration  of  peace,  it- 
was  immediately  pledged  to  a  loan,  and  thus  after  being 
repealed  and  reimposed,  it  has  become  like  the  land  tax  a 
permanent  element  in  the  national  revenue.3  At  the  moment 
when  the  nation  began  to  rebel  against  the  alarming  growth 
of  taxation  made  necessary  by  the  prolonged  struggle  with 
France,  Charles  Montagu,  afterward  Lord  Halifax,4  proposed 

1  And  thus  the  assessment  became  "as  impolitic  and  unreasonable  a  method 
of  raising  great  sums  of  money  as  ever  was  introduced  in  any  nation."    Halifax, 
Essay;  Somers,  Tracts,  iv.  63. 

2  Dowell,  History  of  Taxation,  ii.  49,  50,  and  51. 
1  Ibid.  ii.  182-228,  230,  332. 

.  •  His  "Life"  is  embraced  in  his  Political  Works,  published  in  1716.  His 
Miscellaneous  Works  were  published  in  1704;  and  his  Life  and  Miscellaneous 
Works  in  1715,  London. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  407 

in  December,  1692,  that  England  should  adopt  the  con- 
tinental plan  of  lightening  the  annual  burden  resulting  from 
war  by  contracting  a  national  debt.  And  in  order  to  improve 
upon  the  old  methods  of  borrowing  from  the  London  gold- 
smiths, whose  credit  with  capitalists  had  been  seriously  shaken 
by  the  closing  of  the  exchequer  by  the  Cabal,  Montagu  re- 
solved to  utilize  a  plan  of  a  national  bank,  such  as  already 
existed  in  Holland  and  in  Genoa,  previously  suggested  by 
a  Scotchman,  William  Patterson.  Thus  it  was  that  in  the  Bank  of 
spring  of  1694,  when  another  great  loan  became  necessary 
for  the  sustenance  of  the  war,  Montagu  introduced  a  bill  for 
the  incorporation  of  the  Bank  of  England.1 

20.   A  brief  account  has  been  given  of  the  inner  circle  of  Growth  of 
the  privy  council,  —  first  reproachfully  termed  "  the  Juncto  "  2  ministerial1 
or  "Cabinet  Council"  in  the  reign  of  Charles  I.,  and  "the  system- 
Cabal"  3  in  that  of  Charles  II.,  —  which,  as  a  secret  committee 
of  the  king's  personal  advisers,  directed  the  royal  adminis- 
tration down  to  the  Revolution  of  1688.     William  and  Mary  Conditions 
inherited  the  system  of  government  by  cabinets  composed 


of  ministers,  each  one  of  whom  could  be  appointed  and  re-  Mary- 

moved  by  the  king  without  the  consent  of  the  rest,  and  each 

one  of  whom  as  a  mere  servant  of  the  crown  was  directly 

responsible  for  the  performance  of  his  special  duties  to  it  alone. 

While  such  ministers  were  members  of  Parliament,  they  could 

not  unite  among  themselves  in  carrying  out  any  joint  scheme  Lack  of 

of  government  because  there  was  no  internal  cohesion  growing  cohesion. 

out  of  the  possession  of  common  political  principles.     How 

to  remove  that  fatal  evil  arising  out  of  the  lack  of  power  upon 

the  part  of  the  cabinet  to  act  as  a  unit  with  the  majority  of 

the  popular  chamber,  in  which  the  real  sovereignty  was  vested, 

was  the  question  of  questions,  whose  answer  the  statesmen  of 

the  Revolution  left  to  those  who  came  after  them.     The  mod-  Of  Revoiu- 

1  The  bill,  which  originated  in  the  commons  as  a  money  bill,  passed  the  lords 

without  amendment  in  April.     See  Lords'  Journal,  23d  and  24th  of  April,  1694. 

*  Clarendon,  History  of  Rebellion,  bk.  ii.,  p.  226.  *  See  above,  p.  387. 


408 


THE  SCIENCE  OF  JURISPRUDENCE 


tion  failed 
to  meet 
difficulty. 


Change 
brought 
about 
through  a 
set  of  tacit 
understand- 
ings. 

Things  of 
which  the 
positive  law 
knows 
nothing. 


Cabinet  has 
no  legal 
existence. 


Mainspring 
of  modern 
constitu- 
tion. 


Conven- 
tional as 
distin- 
guished 
from 
written 
code. 


era  ministerial  system,  through  whose  silent  growth  the  sov- 
ereignty of  the  British  Empire  has  been  transferred  from  the 
king  to  the  House  of  Commons,  is  the  fruit  of  the  final  triumph 
won  by  Parliament  over  the  monarchy  in  the  Revolution  of 
1688.  The  Revolution  settled  the  principles  that  made  the 
great  change  inevitable,  and  then  left  it  to  time  to  press  them 
to  their  ultimate  conclusion,  through  a  set  of  tacit  understand- 
ings, of  which  the  positive  law  knows  nothing,  and  of  which 
there  is  no  written  memorial.  No  such  body  as  a  cabinet  is 
known  to  English  law ;  no  such  office  as  that  of  prime  minister 
is  recognized  by  any  statute ;  there  is  no  legal  provision  that 
requires  a  king  to  appoint  ministers  of  whom  the  House  of 
Commons  approves,  or  to  dismiss  ministers  of  whom  it  does 
not  approve ;  the  law  knows  nothing  of  the  collective  respon- 
sibility of  ministers ;  it  knows  nothing  of  their  duty  to  resign, 
or  to  appeal  to  the  country,  when  they  are  rebuked  by  an 
adverse  vote  of  the  popular  chamber.  Of  the  existence  of  the 
privy  council  the  law  is  aware,  but  of  the  inner  circle  of  the 
privy  council,  called  a  cabinet,  it  knows  absolutely  nothing. 
The  meetings  of  the  inner  circle  are  secret,  and  its  proceedings, 
which  are  highly  confidential,  are  not  even  recorded.  From  a 
strictly  legal  standpoint,  the  cabinet  is  a  mere  phantom  which 
passes  between  the  Parliament  and  the  crown,  impressing 
the  irresistible  will  of  the  one  upon  the  other.  And  yet, 
from  a  political  and  practical  standpoint,  the  cabinet  is  the 
mainspring  of  the  modern  constitutional  system.  So  long, 
and  only  so  long,  as  the  royal  authority  is  wielded  in  obedience 
to  the  will  of  the  majority  of  the  House  of  Commons  does  the 
machinery  of  government  continue  in  motion.  The  unwritten 
and  conventional  code  of  tacit  understandings  —  out  of  which 
the  existing  ministerial  system  has  been  slowly  evolved,  and 
from  which  it  derives  moral  and  political  as  distinguished 
from  legal  authority  —  has,  within  the  last  two  centuries, 
grown  up  by  the  side  of  the  older  code  of  written  constitutional 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  409 

law,  from  which  it  must  be  sharply  distinguished.1    At  the  end 
of  the  Revolution  of  1688  the  written  code  had  reached  its  Embodied 
completion;   at  that  time  the  Great  Charter,  the  Petition  of  dociunents. 
Right,  the  Bill  of  Rights,  and  the  Act  of  Settlement,  when 
taken  together,  defined  the  prerogatives  of  the  crown,  the 
privileges  of  Parliament,  and  the  rights  of  the  subject  with 
about  as  much  precision  as  an  American  constitution  now 
defines  the  relative  rights  and  duties  of  governors  and  gov- 
erned.    The  written  code  contained  in  these  four  documents, 
like  an  American  constitution  contained  in  one  document, 
did  not  pretend    to    be   complete  within    itself;  for  details 
and  definitions  it  depended,  as  an  American  constitution  now 
depends,  upon  that  strange  mixture  of  tradition  and  precedent 
generally  known  as  the  English  common  law.     Down  to  the 
Revolution  of  1688  the  written  code  thus  supplemented  and 
explained  by  the  customary  law  was  the  constitution.     No  No  distinc- 
distinction  had  yet  been  drawn  between  the  constitution  and  tween  law 
the  law.     Any  act  which  failed  to  offend  against  some  pro- 


vision  or  principle  either  of  the  written  code  or  of  the  cus-  to  the 

Revolu- 

tomary  law  could  be  in  no  sense  illegal.    With  that  fact  clearly  tion. 

in  view  it  becomes  easier  to  explain  the  nature  of  the  conven- 

tional and  extra-legal  constitution  which  has  grown  up  along- 

side of  the  written  code,  and  which,  without  altering  its  out- 

ward form,  has  completely  changed  its  practical  working. 

By  the  Bill  of   Rights  the  legal  character  of  the  kingship  Legal 

was  fully  recognized  and  reestablished  with  all  the  preroga-  of  kingship 

tives  inherent  in  the  crown  prior  to  the  usurpations  introduced 

by  the  Tudor  and  Stuart  kings.     After  the  Revolution  settle- 

ment, as  before,  the  king  still  possessed  the  absolute  legal 

right  to  assemble,  prorogue,  and  dissolve  Parliament,  and  to 

1  "We  now  have  a  whole  system  of  political  morality,  a  whole  code  of  precepts 
for  the  guidance  of  public  men,  which  will  not  be  found  in  any  page  of  either  the 
Statute  or  the  Common  Law,  but  which  are  in  practice  hardly  less  sacred  than 
any  principle  embodied  in  the  Great  Charter  or  in  the  Petition  of  Right.  In 
short,  by  the  side  of  our  written  law  there  has  grown  up  an  unwritten  or  conven- 
tional constitution.  "  Freeman,  Growth  of  the  English  Constitution,  p.  1  14. 


410 


THE  SCIENCE  OF  JURISPRUDENCE 


Legal  pre- 
rogatives 
subject  to 
ministerial 
control. 


refuse  his  assent,  as  a  coordinate  branch  of  the  legislature, 
to  any  bill  the  two  houses  might  enact.  As  the  supreme 
executive  he  retained  the  control  of  foreign  affairs  through 
the  sending  and  receiving  of  ambassadors,  the  contracting 
of  treaties  and  alliances,  and  the  making  of  war  and  peace. 
In  the  same  capacity  he  acted  at  home  as  the  general  conser- 
vator of  the  peace,  the  guardian  of  the  public  health,  the  ar- 
biter of  commerce,  and  as  the  supreme  head  of  the  army  and 
the  fleet.  As  the  fountain  of  justice  he  still  appointed  the 
judges,  and  prosecuted  offenders  whose  crimes  he  alone  could 
pardon  after  conviction.  As  the  fountain  of  honor  he  could 
create  peers,  bestow  titles,  offices,  and  pensions,  and  erect 
corporations.  As  the  head  of  the  national  church  he  could 
appoint  prelates,  and  prorogue,  regulate,  and  dissolve  all 
ecclesiastical  synods  and  convocations,  whose  canons  were 
valueless  unless  made  by  his  leave  and  with  his  approval. 
And  last  and  most  of  all,  he  still  possessed  the  legal  right,  after 
the  Revolution  as  before,  to  appoint  his  own  ministers  and 
to  dismiss  them  at  his  pleasure.  But  under  the  unwritten 
conventional  constitution  which  has  grown  up  alongside  of 
the  written  code  since  that  time  it  is  understood  that  the 
crown  can  neither  appoint  ministers  of  whom  the  House  of 
Commons  does  not  approve,  nor  dismiss  ministers  of  whom 
it  does  approve.  And  it  is  also  understood  that  while  such 
ministers  are  in  office  all  the  legal  prerogatives  of  which  the 
Crown  is  possessed  by  virtue  of  the  written  law  shall  be  en- 
tirely subject  to  its  direction  and  control.  By  virtue  of 
such  understandings  the  king  reigns  and  the  ministers  govern; 
and  "the  king  can  do  no  wrong,"  because  all  unwise  and  im- 
proper acts  are  those  of  his  ministers,  who  can  be  promptly 
and  sufficiently  punished  simply  by  a  dismissal  from  office. 
Thus  it  is  that  the  sovereign  powers  of  the  state  are  exercised 
by  virtue  of  positive  law  through  a  political  body  whose  exist- 
ence that  law  does  not  recognize,  and  whose  highest  duties 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  411 

and  responsibilities  are  neither  defined  in  it  nor  punished  by  it. 
Out  of  that  condition  of  things  has  grown  the  distinction,  now 
well  understood  by  English  lawyers  and  statesmen,  between 
the  conventional  constitution  and  the  law;  between  acts  Acts  may  be 
which  may  be  unconstitutional  and  yet  not  illegal.  The  tutionai* 
cabinet  ministers  may,  individually  or  collectively,  commit  nj^^et  not 
some  breach  of  the  written  law,  which  may  be  in  the  strictest 
sense  of  the  term  an  illegal  act,  for  which  they  may  be  pun- 
ished in  the  ordinary  tribunals,  or  by  the  extraordinary  process 
of  impeachment  in  the  high  court  of  Parliament.  At  the  same 
time  such  ministers  may  commit  a  grossly  unconstitutional 
act  which  in  no  sense  of  the  term  can  be  called  illegal,  and  of 
which  no  cognizance  can  be  taken  in  any  court  whatsoever. 
Such  an  offense  would  be  committed  should  the  ministers 
refuse  to  resign  office  after  a  vote  of  censure  had  been  passed 
upon  them  in  the  House  of  Commons.  No  court  could  com- 
pel them  to  resign,  and  yet  their  act  would  constitute  the  most 
highly  penal  offense  that  could  be  committed  against  the 
modern  constitution.  The  best  possible  reason  which  can  be 
given  for  the  absence  of  any  legal  method  of  punishment  for 
such  an  act  is  that  the  House  of  Commons  holds  in  its  own 
hands  a  political  method  of  coercion  which  is  at  once  summary 
and  irresistible.  When  the  ministers  under  proper  circum- 
stances refuse  to  resign,  the  house  can  compel  obedience  by 
simply  refusing  to  keep  the  machinery  of  government  in  motion. 

How  far  did  the  process  of  change,  out  of  which  the  existing  Ministries 
ministerial  system  grew,  actually  advance  during  the  reigns  and  Anne! 
of  William  and  Anne?     William's  first  parliamentary  min- 
istry came  into  being  when,  under  the  advice  of  Sunderland, 
he  attempted  to  bring  the  lower  house  into  harmony  with 
the  crown  through  an  arrangement  which,  for  the  first  time 
in  English  history,  enabled  the  executive  to  be  represented  ^ted" 
in  that  body  by  a  politically  united  group  of  its  ministers,  §n^°^t 
who,  as  representatives  of  the  dominant  party,  constituted  party. 


412 


THE  SCIENCE  OF  JURISPRUDENCE 


Duty  to 

resign 
office. 


An  interval 
of  anarchy. 


Anne  last 
to  exercise 
veto  power. 


Her  outcry 
against 
party  gov- 
ernment. 


at  the  same  moment  the  inner  circle  of  the  privy  council. 
The  Whig  ministry  thus  formed,  under  the  lead  of  Russell, 
Somers,  Montagu,  Wharton,  and  Shrewsbury,  was  able  to 
sustain  the  king  during  the  trial  that  followed  the  death  of 
the  queen  at  the  end  of  1694,  and  to  hold  Parliament  at  his 
side  in  the  prosecution  of  the  war  until  the  Alliance  succeeded 
in  winning  in  1695  its  first  great  triumph  over  France  through 
the  capture  of  Namur.  The  quickness  of  perception  that 
enabled  the  Junto  to  grasp  the  first  principle  of  the  new 
ministerial  system  by  repelling  as  a  unit  all  attacks  upon  any 
of  its  members  was  fully  equaled  by  their  inability  to  com- 
prehend the  second,  involving  their  duty  to  resign  office,  when, 
through  the  elections  that  took  place  at  the  close  of  1698, 
their  political  opponents  won  a  majority  of  the  House  of  Com- 
mons. "Thus  at  the  beginning  of  1699  there  ceased  to  be 
a  ministry ;  and  years  elapsed  before  the  servants  of  the  crown 
and  the  representatives  of  the  people  were  again  joined  in 
a  union  as  harmonious  as  that  which  had  existed  from  the 
general  election  of  1695  to  the  general  election  of  1698.  The 
anarchy  lasted,  with  some  short  intervals  of  composedness, 
till  the  general  election  of  1705."  1  When  Anne,  who  hated 
party  government  in  every  form  as  an  enslavement  of  the 
crown,  —  whose  personal  influence  she  attempted  to  uphold 
by  presiding  to  the  last  at  every  weekly  meeting  of  the  cab- 
inet council,2  and  by  exercising  for  the  last  time  the  veto  3 
power,  —  was  forced  to  bow  to  the  Whigs,  whom  she  regarded 
as  but  little  better  than  republicans,  she  declared  in  her  let- 
ters to  Godolphin,  when  the  entry  of  Sunderland  into  the 
ministry  had  become  inevitable,  that  "  the  appointment  would 
be  equivalent  to  throwing  herself  entirely  into  the  hands  of 
a  party;  that  it  was  the  object  of  her  life  to  retain  the  faculty 
of  appointing  to  her  service  honorable  and  useful  men  on 

1  Macaulay,  ii.  709,  710.  *  Campbell,  Chancellors,  iv.  287. 

3  In  1707,  when  she  rejected  a  Scotch  militia  bill.     In  1693  and  1694  William 
III.  had  refused  to  assent  to  the  Triennial  Bill  and  Place  Bill. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  413 

either  side;   that  if  she  placed  the  direction  of  affairs  exclu- 
sively in  the  hands  of  either  Whigs  or  Tories,  she  would  be 
entirely  their  slave,  the  quiet  of  her  life  would  be  at  an  end, 
and  her  sovereignty  would  be  no  more  than  a  name."  *    The 
death  cry  of  the  monarchy  against  the  inevitable,  as  thus 
uttered  by  Anne,  was  a  prophecy.     The  growth  of  the  new 
cabinet  system,  retarded  by  unpropitious  surroundings  during  Cabinet 
the  reigns  of  William  and  Anne,  was  suddenly  stimulated  at  stimulated 
the  accession  of  George  I.  by  the  advent  of  new  conditions  byaccession 

of  George  I. 

specially  favorable  to  its  development.  Foremost  among 
those  conditions  was  the  impersonality  of  the  new  sovereign, 
resulting  from  a  willingness  upon  his  part  to  surrender  his 
right  to  rule  into  the  hands  of  his  constitutional  advisers. 
So  far  from  showing  the  bitter  antagonism  of  William  and  Anne 
to  such  an  arrangement,  this  foreign  king,  who  could  not  speak 
the  English  language,2  and  who  always  regarded  his  English 
kingdom  as  an  appendage  to  his  Hanoverian  electorate,  was 
content  to  leave  its  entire  management  to  an  English  cabinet 
while  he  devoted  his  personal  energies  to  the  promotion  of  his 
electoral  interests.  At  the  accession  of  the  House  of  Han- 
over there  was,  for  the  first  time  since  the  Revolution,  a 
simultaneous  change  of  a  whole  ministry,  and  their  replace-  First  simui- 
ment  by  another  whose  members  took  charge  of  all  the  prin- 
cipal  offices  of  state.3  The  Whig  party  which  thus  came  into 
power  under  the  leadership  in  the  cabinet  of  Townshend, 
Stanhope,  and  Walpole  was  able,  by  virtue  of  its  excellent 
organization,  to  perpetuate  its  rule  for  more  than  thirty 
years,  supported  as  it  was  by  a  group  of  noble  families,  at 
whose  head  stood  the  Benticks,  the  Mannerses,  the  Caven- 
dishes, the  Russells,  and  the  Grenvilles. 
In  the  English  constitutional  system  as  it  now  exists  the 

1  See  Lecky,  History  of  England  in  the  Eighteenth  Century,  i.  224. 
*  As  Walpole,  his  chief  minister,  could  not  speak  French,  the  story  goes  that 
they  conversed  in  Latin.     Coxe,  Walpole,  i.  266 ;  H.  Walpole,  Works,  iv.  426. 
1  See  Torrens,  History  of  Cabinets,  vol.  i.,  ch.  i.,  entitled  "The  First  Cabinet." 


414 


THE  SCIENCE  OF  JURISPRUDENCE 


Sover- 
eignty now 
vested  in 
the  House 
of  Com- 
mons. 


Crown  and 
legislature 
employ  a 
common 
agent. 


Three  basic 
principles  of 
parliamen- 
tary gov- 
ernment. 


supreme  powers  of  the  state  are  vested,  not  in  theory  but  in 
fact,  in  the  representative  branch  of  the  imperial  Parliament, 
whose  members  under  the  provisions  of  recent  reform  bills 
are  chosen  by  an  electorate  so  broad  as  to  embrace  every 
element  necessary  for  the  full  and  free  expression  of  the  will 
of  the  people  as  a  whole.  The  commands  thus  given  by  the 
nation  to  its  rulers  through  the  medium  of  this  electoral 
system  are  executed  by  a  committee  chosen  by  the  crown  from 
the  ranks  of  that  party  which  for  the  moment  commands 
a  majority  of  the  House  of  Commons.  In  order  to  secure 
perfect  concord  between  the  supreme  legislative  and  execu- 
tive powers,  the  committee  that  acts  as  the  agent  of  the  repre- 
sentative chamber  is  also  made  the  agent  of  the  crown  by 
being  intrusted  with  the  offices  that  pertain  to  those  who 
constitute  the  inner  circle  of  the  privy  council  known  as  the 
cabinet.1  The  primary  object  of  this  delicate  and  complex 
mechanism  is  to  secure  a  perpetual  accord  between  those  who 
wield  the  executive  power  in  the  name  of  the  crown  and  the 
electorate  by  which  the  members  of  the  representative  cham- 
ber are  chosen.  As  a  means  to  that  end  three  basic  princi- 
ples have  been  gradually  established  in  practice  upon  which 
parliamentary  government  in  England  now  reposes.  The 
first  of  these  demands  that  the  cabinet  council  shall  be  bound 
together  as  a  unit  through  the  possession  of  identical  political 
principles  held  in  common  with  a  majority  of  the  House  of 
Commons;  the  second,  that  the  moment  that  condition  of 
things  ceases  to  exist  the  cabinet  shall  resign  as  a  whole ;  the 
third,  that  for  the  more  convenient  execution  of  the  policy 
approved  by  the  representative  chamber,  the  headship  of  the 
cabinet  shall  be  vested  in  a  single  person  known  as  prime 
minister.  If  the  several  parts  that  enter  into  the  structure 

1  "A  cabinet  is  a  combining  committee, — a  hyphen  which  joins,  a  buckle 
which  fastens,  the  legislative  part  of  the  state  to  the  executive  part  of  the  state. 
In  its  origin  it  belongs  to  the  one,  in  its  functions  it  belongs  to  the  other." 
Bagehot,  The  English  Constitution,  p.  14. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  415 

of  this  subtile  mechanism  had  been  created  by  the  conscious 
action  of  the  state  embodied  in  charters,  orders  in  council,  or 
parliamentary  statutes,  the  method  to  be  pursued  by  those 
who  attempt  to  draw  out  its  history  would  be  at  once  obvious 
and  easy.  But  the  fact  is  that  the  cabinet  system  as  it  now  Cabinet 
exists  is  the  gradual  and  unpremeditated  outcome  of  the  pro- 


gressive  history  of  the  nation  as  it  has  unfolded  itself  since  the  **^[  ° 


Revolution  of  1688;   it  is  the  product  of  the  growth  of  that  progressive 

history. 

set  of  tacit  understandings  generally  known  as  the  conven- 
tional constitution,  which  has  developed  alongside  of  the 
written  code  since  that  time.  As  it  is  true,  then,  that  the 
wonderful  thing  to  be  described  was  not  made  but  grew, 
nothing  more  can  be  attempted  than  a  detailed  statement 
of  the  successive  stages  through  which  it  grew.  For  conven- 
ience, the  entire  period  of  growth,  which  began  with  the  Revo- 
lution and  paused  rather  than  ended  with  the  last  reform  bill^ 
may  be  broken  into  two  distinct  epochs  that  should  be  clearly  TWO  db- 
distinguished  from  each  other.  As  a  matter  of  historical  fact, 
the  three  fundamental  principles  already  defined  regulating 
the  relations  of  the  cabinet  to  the  crown  on  the  one  hand, 
and  to  the  House  of  Commons  on  the  other,  came  into  being 
long  before  the  house  itself  was  made  a  really  representative 
body,  and  as  such  a  true  exponent  of  the  nation's  will.  The 
first  epoch,  therefore,  in  the  growth  of  the  modern  ministerial 
system  —  coextensive  with  the  reigns  of  George  I.  and  George 
II.  —  is  that  during  which  the  three  vital  principles  defining 
the  functions  of  the  cabinet  were  so  firmly  settled  in  practice 
as  to  enable  them  to  resist  all  subsequent  efforts  to  overthrow 
them.  During  the  twenty  years  that  followed  the  breaking 
of  the  South  Sea  Bubble  in  1721  Walpole  so  dominated  the 
action  of  the  cabinet  and  so  impressed  his  personal  will  upon 
his  party  as  to  become  the  first  prime  minister,1  in  the  modern 

1  As  first  lord  of  the  treasury,  with  Townshend  at  his  side  as  secretary  of 
state.     Ton-ens,  History  of  Cabinets,  i.  298,  299.     Carlyle  tells  us  :  "He  had  one 


416 


THE  SCIENCE  OF  JURISPRUDENCE 


Walpole 
first  prune 
minister  in 
modern 


Forced  to 
resign  by 
adverse 
vote,  a 
minister  in 
conflict 
with  major- 
ity of  col- 
leagues. 


George 
III. 's  as- 
sault upon 
cabinet 
system. 


"The  king's 
friends." 


sense  of  that  term,  as  distinguished  from  those  royal  favorites 
under  the  prerogative  system  of  government  whose  rise  and 
fall  depended  upon  the  personal  will  of  the  king  alone.  Wal- 
pole was  the  first  prime  minister  ever  forced  to  resign  by  an 
adverse  vote  of  the  lower  house.1  Then  followed  the  settle- 
ment of  the  principle  in  the  case  of  Lord  Granville  in  1744, 
that  it  is  the  duty  of  a  minister  to  resign  when  he  is  no  longer 
in  political  harmony  with  the  majority  of  his  colleagues.2 
In  the  light  of  these  facts  it  is  possible  to  say  that  at  the  death 
of  George  II.  "  cabinet  rule  had  been  upon  its  trial  for  nearly 
half  a  century;  and,  despite  many  blemishes  and  errors,  its 
superiority  to  the  systems  of  government  that  had  preceded 
it  was  tacitly  accepted  by  the  nation."  3 

The  last  attempt  ever  made  to  break  down  cabinet  govern- 
ment was  made  by  George  III.,  who  came  to  the  throne  stimu- 
lated by  his  mother's  continual  precept  of  "George,  be 
king."  4  In  1762  his  hope  was  realized.  The  ministerial 
system  the  Whigs  had  been  constructing  for  nearly  fifty  years 
was  broken  down,  and  its  place  supplied  by  a  coterie  of  "  the 
king's  friends,"  under  the  leadership  of  Bute,  who  was  not 
prime  minister  in  the  sense  in  which  Walpole  had  been,  but 
a  mere  court  favorite  or  grand  vizier,  whose  rise  and  fall  de- 
pended solely  upon  the  will  of  his  master,  and  not  upon  that 

rule,  that  stood  in  the  place  of  many :  To  keep  out  of  every  business  which  it 
was  possible  for  human  wisdom  to  stave  aside.  '  What  good  will  you  get  out 
of  going  into  that  ?  Parliamentary  criticism,  argument,  and  botheration  I 
Leave  well  alone.'  "  Life  of  Frederick  of  Prussia,  iii.  373,  374. 

1  The  struggle  for  his  overthrow  began  in  1741  with  a  motion  made  in  the  lords 
for  an  address  praying  the  king  "to  dismiss  Sir  Robert  Walpole  from  his  pres- 
ence and  councils  forever."     Although  defeated  by  a  large  majority,  the  motive 
for  the  assault  was  revealed  by  a  protest  entered  on  the  journals  by  thirty- 
one  peers,  who  declared  that  as  "a  sole,  or  even  a  first  minister,  is  an  officer 
unknown    to    the  law  of    Britain,  inconsistent  with  the  constitution  of  this 
country,  and  destructive  of    liberty  in  any  government  whatsoever."     Par- 
liamentary History,  ii.  1083,  1126,  1215. 

2  The  king  indicated  to  Granville  his  desire  that  he   should  resign   office. 
Bedford  Correspondence,  i.  25-35. 

*  Torrens,  History  of  Cabinets,  ii.  566. 
4  Rockingham,  Memoirs,  i.  3. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  417 

of  the  House  of  Commons.    So  completely  did  George  III. 

succeed  in  erasing  from  the  mind  of  Englishmen  the  idea  that 

the  immature  system  of  cabinet  government  was  a  perma- 

nent part  of  the  constitution  of  their  country,  that  the  great 

contemporary  expounder  of  the  laws  of  England  gives  it 

no  place  in  his  Commentaries,  which  were  first  published  in 

authoritative  form  in  1765.     Blackstone  does  not  mention 

the  name  of  "cabinet"  at  all;   and  the  same  thing  may  be  "Cabinet 

said  of  the  work  of  De  Lolme,  La  Constitution  de  I'Angleterre, 

first  published  at  Amsterdam  in  1771.     Both  of  these  famous 

nor  De 

writers,  who  put  forth  their  views  just  before  George  III.'s  Lolme. 

destructive  work  had  reached  its  consummation,1  perfectly 

comprehended  the  history  and  structure  of  the  privy  council, 

but  of  its  mysterious  inner  circle,  unknown  to  the  law,  called 

the  "cabinet,"  they  seem  to  have  known  absolutely  nothing. 

The  practical  statesmen  who  met  at  Philadelphia  in  1787  to  Presiden- 

frame  the  present  constitution  of  the  United  States,  with  the 


English  original,  so  far  as  it  could  be  applied,  as  their  avowed  ^  *f.ter 
model,  manifested  throughout  the  same  unconsciousness  of  George  in. 
the  existence  of  the  cabinet  system  that  characterized  their 
scientific    European    contemporaries.    The   framers   of   the. 
American  constitution,  in  constructing  the  presidential  office, 
had  no  conception  of  the  shadowy  kingship  of  to-day,  which 
reigns  but  does  not  govern;  "the  figure  they  had  before  them 
was  not  a  generalized  English  king  nor  an  abstract  constitu- 
tional monarch;    it  was  no  anticipation  of  Queen  Victoria, 
but  George  III.  himself  whom  they  took  for  their  model. 
Fifty  years  earlier  or  a  hundred  years  later,  the  English  king 
would  have  struck  them  in  quite  a  different  light."  2    But  as 
William  and  Anne  had  failed,  so  George  III.  failed  in  his  George  in. 
struggle  against  the  inevitable.    His  conqueror  was  Pitt, 

1  In  1780  it  was  that  Mr.  Dunning  carried  though  the  House  of  Commons  his 
famous  resolution  affirming  "that  the  influence  of  the  crown  has  increased,  is 
increasing,  and  ought  to  be  diminished."  Cobbett,  Parliamentary  History,  xxi. 
347.  a  Maine,  Popular  Government,  p.  212. 

la 


418 


THE  SCIENCE  OF  JURISPRUDENCE 


A  real  chief 
of  state. 


Destroyed 
system  of 
independ- 
ent depart- 
ments. 


Reform  of 
repre- 
sentative 
system. 


the  prime  minister  of  twenty-five,  who  had  entered  public 
life  as  a  Whig,  and  who  was  lifted  through  the  wreck  of  that 
party  to  a  height  of  political  authority  which  no  other  states- 
man had  been  able  to  reach  since  the  Revolution.  If  Pitt 
was  forced  to  veil  his  absolutism  as  prime  minister  by  an  out- 
ward show  of  submission  to  the  royal  will,  within  the  cabinet 
itself  he  so  asserted  his  authority  as  to  put  beyond  all  question 
the  fact  that  he  was  the  real  chief  of  state.1  By  finally  estab- 
lishing the  paramount  influence  of  the  prime  minister  over 
his  associates,  Pitt  was  able  to  break  down  at  last  the  bad 
system  of  government  by  means  of  separate  and  independent 
departments  of  state  that  had  existed  since  the  Revolution, 
simply  because  the  ministers  had  never  been  forced  to  accept 
the  supremacy  of  a  common  chief.2  The  foundations  of  such 
supremacy,  laid  down  by  Walpole,  ripened  under  Pitt  into 
a  rule  of  government  which,  with  perhaps  two  exceptions, 
has  never  been  disputed  since  that  time. 

If,  when  Pitt  resigned  office  in  1801,  the  House  of  Commons 
had  been  really  an  independent  and  representative  body, 
parliamentary  government  as  now  understood  in  England 
would  have  been  substantially  complete.  In  theory  the  lower 
house  was  at  that  time  both  representative  and  independent, 
—  in  fact,  it  was  both  dependent  and  corrupt.  The  unreformed 
medieval  representative  system,  which  the  nation  had  out- 
grown, had  through  the  restriction  of  the  franchise  been 
made  dependent  upon  an  absurdly  small  number  of  electors 
who  were  in  the  main  subject  to  the  control  of  the  crown  and 
the  aristocracy.  The  prolonged  and  bitter  struggle,  through 
which  the  nation  has  so  reconstructed  the  popular  chamber 
as  to  make  it  a  truly  representative  body  dependent  upon  the 

1  It  is  said  to  have  been  his  custom  briefly  to  discuss  at  cabinet  meetings  with 
Dundas  such  matters  as  they  had  not  previously  arranged,  and  then  after 
communicating  his  decision  to  his  colleagues  they  were  told  that  they  might 
go.  Fitzmaurice,  Life  of  Lord  Shelburne,  iii.  411. 

a  Todd,  Parliamentary  Government,  i.  264,  265. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  419 

will  of  the  people  alone,  rounds  out  the  second  epoch  in  the 
history  of  modern  cabinet  government,  which,  beginning  with 
the  reign  of  George  III.,  ends  for  the  moment  with  the  last 
Reform  Bill.  The  elder  Pitt,  who  was  the  first  to  advocate  Elder  Pitt's 
reform,  boldly  denounced  in  the  lower  house  in  1766  the  bor-  me  and 
ough  representation  as  "the  rotten  part  of  our  constitution. 
It  cannot  continue  the  century;  if  it  does  not  drop,  it  must 
be  amputated;"1  and  in  1770  he  proposed  that  a  third 
member  should  be  added  to  every  county,  "  in  order  to  coun- 
terbalance the  weight  of  corrupt  and  venal  boroughs." 2 
In  1774  appeared  Lord  Stanhope's  pamphlets,  which  seem  to  stanhope, 

1774 

have  been  the  earliest  publications  in  favor  of  reform ;  and 

in  1776  they  were  followed  by  the  work  of  John  Cartwright,  Cartwright, 

1 77fi 

whose  second  edition  was  entitled    The   Legislative   Rights 

of  the  Commonalty  Vindicated.     In   that   year  it  was   that 

John  Wilkes    introduced    a    comprehensive    scheme    of    re-  wukes. 

form,  embodying  substantially  all  the  principles  that  have 

been  successfully  advocated  since  that  time.    He  moved 

for  a  bill,  which  was  negatived  without  a  division,3  to  give 

additional  members  to  Middlesex,  Yorkshire,  and  other  large 

counties,  as  well  as  to  the  metropolis ;  to  disfranchise  the  rotten 

boroughs,  and  to  add  the  electors  to  the  county  constituencies ; 

and,  finally,  to  enfranchise  "rich,  populous  trading  towns" 

like  Manchester,  Leeds,  Sheffield,  and  Birmingham.     In  1780, 

when  the  duke  of  Richmond,  in  the  midst  of  the  Lord  George  Richmond, 

17SU 

Gordon  riots,  presented  a  bill  for  the  establishment  of  annual 

parliaments,  equal  electoral  districts,  and  universal  suffrage, 

the  upper  house  set  aside,  without  a  division,  a  scheme  then 

considered  unworthy  of  serious  consideration.4    Such  was  the 

prelude  to  the  efforts  in  favor  of  reform  made  by  the  younger 

Pitt,  who  introduced  in  1782  a  motion  for  a  committee  to  Younger 

inquire  into  the  state  of  the  representation,  prefaced  by  a  Iitt* 1782- 

1  Debates  on  the  Address,  January,  1766,  Cobbett,  Parliamentary  History, 
xvi.  100;  xvii.  223.  »  Walpole,  Memoirs,  iv.  58. 

.     *  Parliamentary  History,  xvii.  223,  n.  *  Ibid.  xxi.  686. 


420 


THE  SCIENCE  OF  JURISPRUDENCE 


His 
defeats. 


speech  in  which  he  denounced  the  nomination  boroughs  as 
"  the  strongholds  of  that  corruption  to  which  he  attributed  all 
the  calamities  of  the  nation,"  —  an  abuse  that  "  had  grown 
with  the  growth  of  England  and  strengthened  with  her 
strength,  but  had  not  diminished  with  her  diminution  nor 
decayed  with  her  decay."  1  Although  supported  by  Fox  his 
attempt  failed;  and  when  in  1783  he  renewed  his  efforts  his 
resolutions  were  rejected  by  a  vote  of  nearly  two  to  one.2 
In  1785  he  introduced  his  third  and  last  scheme,  which  shared 
the  same  fate  by  the  rejection  of  the  motion  to  bring  in  the 
bill  by  a  majority  of  seventy-four.3  Passing  over  the  failure 
of  Flood's  plan  in  1790;  Grey  and  Erskine's  attempt  in  1792- 
1793;  Grey's  more  comprehensive  measure  in  1797;  Bur- 
dett's  radical  proposals  in  1809;  Eland's  efforts  in  the  next 
year,  and  Burdett's  resolutions  renewed  in  1818-1819,  we 
reach  in  1820  Lord  John  Russell,  who  was  destined  to  shape 
the  great  reform  bill  of  1832.  He  began  to  deal  in  a  wise  and 
temperate  spirit  with  the  crying  evils  of  the  representative 
system  at  a  time  when  the  task  was  rendered  more  difficult 
by  reason  of  the  extreme  demands  made,  on  the  one  hand, 
for  universal  suffrage,  and  by  the  unreasoning  denials,  on  the 
other,  of  the  necessity  for  any  change  whatsoever.  Under 
such  conditions  his  efforts  made  in  1821, 1823, 1826, 1828,  and 
1830  were  unsuccessful.  When  at  the  close  he  reiterated,  as  a 
substitute  for  a  more  radical  proposal  from  O'Connell,  his 
own  moderate  ideas  in  favor  of  such  a  disfranchisement  of 
the  smaller  boroughs  as  would  make  possible  the  enfran- 
chisement of  the  great  commercial  towns,  and  the  grant  of 
additional  representation  to  the  more  populous  counties, 
without  any  increase  in  the  total  membership  of  the  House 
of  Commons,  Wellington's  ministry,  which  had  so  recently 
been  forced  to  bow  to  other  demands  of  O'Connell,  resolved 


Efforts  of 
Flood, 
Grey,  and 
others. 


1  Macaulay,  "  William  Pitt,"  Essays,  iii.  325. 

8  Parliamentary  History,  xxiii.  827;   Stanhope,  Life  of  Pitt,  i.  118. 

«  Ibid.  xxv.  432-475. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  421 

to  defeat  both  propositions.    Peel,  government  leader  in  the  Peel's 
lower  house,  declared  that  no  reform  was  needed.1    Under 
that  blow  both  the  resolutions  of  O'Connell  and  the  amend- 
ment of  Lord  John  went  down ;  and  thus  the  last  word  spoken 
at  the  close  of  the  reign  of  George  IV.  seemed  to  settle  the  Cause 
fact  that  the  seventy  years  of  agitation  in  favor  of  reform  beftost  a° 
had  ended  at  last  in  failure  and  disappointment.     While  the  cl?se  °* 

reign  of 

direct  bribery  of  members  had  visibly  declined,  no  change  George  iv. 
whatever  had  taken  place  for  the  better  in  the  constitution 
of  the  popular  chamber,  excepting  only  the  results  brought 
about  through  Catholic  emancipation.  The  system  of  rotten 
boroughs  had  neither  "dropped"  nor  been  "amputated"; 
the  electoral  basis  had  not  been  widened ;  and  not  a  step  had 
been  taken  to  insure  the  redistribution  of  seats,  so  imperatively 
demanded  by  the  shiftings  of  wealth  and  population. 

The  dissolution2  made  necessary  by  the  death  of  George  William 
IV.  on  the  26th  of  June,  1830,  opened  the  way  for  new  elec-  ref0rin  bill* 
tions  held  just  at  the  moment  when  the  revolution  that  over-  of  1832' 
threw  Charles  X.  in  France,  followed  immediately  as  it  was 
by  another  in  Belgium,  gave  a  fresh  impulse  to  the  liberal 
tendencies  in  England,  which  only  a  year  before  had  enforced 
Catholic  emancipation  despite  an  obstinate  resistance  from 
the  high  Tories.     When  Wellington  reiterated  his  opposition 
to  reform  upon  the  meeting  of  Parliament  in  October  he  was 
forced  to  resign  office,  thus  ending  the  Tory  ascendency  that 
had  lasted  for  sixty  years.    Earl  Grey,  who  now  assumed  Earl  Grey's 
office,  with  Brougham  as  lord  chancellor,  announced  that  the  t  "1 

government  would  "take  into  immediate  consideration  the 
state  of  the  representation,  with  a  view  to  the  correction  of  those 
defects  which  had  been  occasioned  in  it  by  the  operation  of 
time."  3  To  Lord  John  Russell  was  assigned  the  honorable 

1  Upon  the  whole  subject,  see  May,  Constitutional  History,  i.  393—417. 

2  Parliament  was  dissolved  July  24. 
»  Hans.  Deb.,  3d  ser.,  i.  606. 


422 


THE  SCIENCE  OF  JURISPRUDENCE 


Second 
rejected  by 
lords. 


Third 
reform  bill 
of  1832. 


One  hun- 
dred and 
forty-three 
seats  redis- 
tributed. 
County 
franchise. 

Borough 
franchise. 


Registra- 
tion. 


duty  of  drafting  the  new  measure  presented  March  1,  183 1.1 
As  all  the  world  knows,  the  ministry  was  defeated  and  Parlia- 
ment dissolved.  After  an  appeal  to  the  nation  the  second 
reform  bill,  passed  by  the  commons  September  21,  was  re- 
jected by  the  lords.  When  the  third  reform  bill  had  passed 
the  commons  in  March,  1832,  the  attempt  of  the  lords  to 
defeat  it  aroused  intense  popular  feeling  and  mob  violence. 
When  the  king  refused  to  create  new  peers  the  ministry  re- 
signed. Then  it  was  that  the  lords  accepted  the  king's  sug- 
gestion and  passed  the  bill  which  became  2  and  3  William  IV., 
c.  45.2  The  primary  object  of  the  act  was  to  equalize  the  rep- 
resentation by  the  withdrawal  of  a  large  number  of  seats 
from  the  rotten  or  nomination  boroughs,  which  were  distrib- 
buted  among  the  greater  districts  hitherto  imperfectly  repre- 
sented or  not  represented  at  all.  A  hundred  and  forty-three 
seats  were  redistributed,  fifty-six  boroughs  being  completely 
disfranchised.  The  county  representation  was  increased  from 
ninety-four  to  one  hundred  and  fifty-nine,  while  the  county 
franchise  was  extended  to  leaseholders  and  tenant  occupiers. 
In  the  boroughs,  in  order  to  extend  the  franchise  to  the  whole 
of  the  municipal  middle  class,  the  right  of  voting  was  given 
as  a  uniform  rule  to  all  occupiers  of  houses,  shops,  or  buildings 
of  any  kind,  of  the  annual  value  of  £10.  The  registration  of 
electors  was  made  a  condition  precedent  to  voting,  with  the 
provision  that  the  polls  should  be  closed  after  two  days,  a 
limit  finally  reduced  to  one  day  only.3  It  has  been  estimated 
that  by  extensions  of  the  franchise  the  total  number  of  elec- 
tors, reckoned  at  the  passing  of  the  reform  bill  of  1832  at 

1  For  the  draft  of  the  original  plan,  as  submitted  by  Lord  John  in  December, 
1830,  see  his  Essay  on  the  History  of  the  English  Government  and  Constitution, 
pp.  226,  227. 

2  Cf .  Roebuck,  History  of  the  Whig  Ministry,  ii.  334 ;  Earl  Grey,  Correspond- 
ence, ii.  420,  444;  May,  Constitutional  History,  i.  144,  419—427.     Sixteen  peers 
were  actually  created  to  aid  the  measure,  and  it  was  understood  that  the  king 
had  consented  to  a  further  increase  if  necessary. 

*  See  the  excellent  summary  in  Lely  and  Foulkes,  Parl.  Elec.  and  Reg.  Acts, 
pp.  xxi-xxviii. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  423 

400,000,  was  about  doubled  ;  l   and  down  to  1868,  prior  to 

the  operation  of  the  Reform  Acts  of  1867-1868,  that  total 

for  all  the  counties  and  boroughs  of  the  United  Kingdom 

had  not,  according  to  the  parliamentary  returns,  grown  be- 

yond 1,370,793.     Only  to  that  limited  extent  did  the  reform 

measure  of  1832  rescue  the  representation  from  an  oligarchy 

of  peers  and  landowners  and  vest  it  in  the  hands  of  the  middle 

classes.    All  acts  upon  the  subject  for  the  next  thirty-five 

years  were  of  minor  importance.     The  Hyde  Park  riot  of 

July  23,  1866,  clearly  indicated  the  presence  of  a  new  impulse 

in  favor  of  reform,  and  the  outcome  was  the  Representation 

of  the  People  Act,  1867,  in  which  large  concessions  were  made  Represent^ 

in  favor  of  the  working  classes,  both  as  to  county  and  borough  * 


franchises,  with  less  important  changes  in  electoral  areas.  Act>  1867> 
In  1868  that  act  was  extended  to  Scotland  by  31  and  32 
Victoria,  c.  48;  and  to  Ireland  by  31  and  32  Victoria,  c.  49. 
After  the  acts  thus  extended  were  fully  developed,  they  finally 
raised  the  electorate  for  the  three  kingdoms,  including  the 
universities,  to  a  grand  total  of  3,183,552  2  (1885),  as  against 
1,370,793,  the  highest  product  (1868)  of  the  reform  measure 
of  1832.    In  1872  was  passed  the  Ballot  Act,3  by  virtue  of  Ballot  Act 
which  the  old  method  of  voting  was  superseded,  except  as 
to  the  universities,  by  the  new  system  requiring  nominations 
in  writing  by  ten  registered  electors,  and  a  poll  by  secret  voting 
taken  by  means  of  a  ballot  paper,  to  be  marked  by  a  single 
X  by  each  elector.    The  moment  the  second  reform  bill  was 
thus  rounded  out  and  completed  by  the  Ballot  Act  of  1872, 
a  fresh  demand  for  a  still  further  extension  of  the  electoral 
system  arose  whose  war  cry  was  "equalization,"  —  equali-  Equali- 
zation of  the  franchise  in  county  and  borough;  equalization  z 
of  the  electoral  areas  by  such  a  redistribution  of  seats  as  would 

1  The  estimate  of  Dr.  Gneist,  History  of  the  English  Constitution,  p.  722. 

3  Borough  electors,  1,651,732;  county  electors,  966,719;  310,441  electors 
for  Scotland;  224,  018  electors  for  Ireland,  and  30,642  electors  for  the  universi- 
ties. *  35  and  36  Viet.,  c.  33. 


424 


THE  SCIENCE  OF  JURISPRUDENCE 


Representa- 
tion of  the 
People  Act, 
1884. 

Redistribu- 
tion of  Seats 
Act,  1885. 


Member- 
ship of 
house  not 

materially 
increased. 


Increase  in 
numbers  of 
upper 
house. 


place  the  county  and  borough  voter  upon  an  equal  plane  as 
to  representation.  In  1884  the  lords  agreed  to  pass  the  Rep- 
resentation of  the  People  Act,  1884,1  upon  the  understanding 
that  a  Redistribution  of  Seats  should  be  introduced  in  the 
lower  house  in  1885.2  Thus  the  subject  of  electoral  quali- 
fications and  that  of  electoral  areas  were  dealt  with  in  separate 
bills,  and  not  jointly  as  in  the  acts  of  1832  and  1867.  In  the 
Redistribution  of  Seats  Act,  which  deals  with  the  electoral 
areas  of  Scotland  and  Ireland,  a«  well  as  with  those  of  England, 
the  effort  was  made  so  to  reconstruct  the  electoral  districts 
as  to  arrange  them  in  divisions  with  substantially  equal  popu- 
lations, each  division  to  return  one  member  only.  It  is  a 
notable  fact  in  the  history  of  this  revolution,  carried  on 
under  constitutional  forms,  by  which  the  electorate  of  the 
House  of  Commons  was  widened  from  about  400,000  voters 
in  1832  to  6,415,469  in  1896,  that  the  membership  of  that 
house  remained  throughout  substantially  unchanged.  Before 
the  passing  of  the  first  reform  bill,  the  representative  chamber 
contained  658  members,  and  in  1885  it  contained  only  670. 
On  the  other  hand,  the  notable  fact  in  the  history  of  the  process 
through  which  the  House  of  Lords  has  been  developed 
into  its  present  forms  is  that  its  membership,  which  at  the 
accession  of  the  House  of  Tudor  numbered  only  52  lay 
peers,  has  been  so  extended  that  in  1897  it  embraced,  all  told, 
567.8  But  while  the  upper  house  has  been  thus  increasing 
in  numbers,  it  has  been  steadily  decreasing  in  constitutional 
importance.  When  the  resistance  interposed  by  it  to  the 
passage  of  the  reform  bill  of  1832  raised  the  question  whether 
or  no  it  is  still  a  coordinate  branch  of  the  legislature, 
it  was  answered  in  the  negative.  The  practical  outcome 
of  that  conflict  was  that  the  House  of  Lords  should  continue 

>  48  Viet.,  c.  3.  2  48  and  49  Viet.,  c.  23. 

*  Five  princes  of  the  blood,  26  archbishops  and  bishops,  21  dukes,  22  mar- 
quesses, 117  earls,  27  viscounts,  305  barons,  16  Scottish  and  28  Irish  representa- 
tive peers,  exculsive  of  15  minors. 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  425 

under  the  tacit  understanding  that  it  will  always  bow  to  the 
will  of  the  nation  in  the  last  resort,  after  that  will  has  been 
clearly  and  finally  expressed  by  the  popular  branch  of  the 
legislature.     It  has  thus  become  a  revising  and  suspending  A  revising 
chamber,  which  can  alter  or  reject  bills  on  which  the  House  ^n(^^ 
of  Commons  is  not  yet  thoroughly  in  earnest,  upon  which  the  chambcr- 
nation  is  not  yet  determined. 

Such,  in  brief,  is  the  present  condition  of  the  vital  organs  Summary 
of  the  English  constitution,  and  such  their  relations  to  each  modem 


other  at  the  end  of  the  ten  centuries  of  unbroken  development, 

which  has  adapted  the  primitive  institutions  of  the  Old-Eng- 

lish commonwealth,  without  any  break  in  their  continuity, 

to  the  ever  increasing  wants  of  one  of  the  most  progressive 

and  powerful  of  modern  societies.    As  heretofore  explained, 

the  result  of  the  Revolution  of  1688  was  to  shift  the  center  of  Center  of 

gravity  of  the  state  from  the  crown  to  the  popular  branch  of          y 


the  legislature.  The  statesmen  of  the  Revolution  did  little 
more,  however,  than  establish  irrevocably  a  political  theory  of  1688 
which  their  posterity  have  been  able  to  press  in  our  time  to 
its  ultimate  and  logical  conclusion,  —  a  conclusion  which 
was  not  fully  reached  until  the  reform  bills  of  the  last  sixty 
years  widened  the  electorate  of  the  House  of  Commons  from 
about  400,000  in  1832  to  nearly  six  millions  and  a  half  in  1897. 
From  that  electorate  the  popular  chamber,  that  embodies  New  p 
and  enforces  the  new  principle  of  sovereignty  to  which  the 
Revolution  gave  birth,  draws  its  authority.  The  mighty 
transformation  thus  brought  about  in  the  internal  mechanism 
of  the  constitution  has  been  effected  with  the  least  possible 
change  in  its  outward  forms.  As  Bagehot  has  happily  ex- 
pressed it,  this  "ancient  and  ever  altering  constitution  is 
like  an  old  man  who  still  wears  with  attached  fondness  clothes 
in  the  fashion  of  his  youth  ;  what  you  see  of  him  is  still  the 
same;  what  you  do  not  see  is  wholly  altered."  *  That  pro- 

1  The  English  Constitution,  p.  2. 


426  THE  SCIENCE  OF  JURISPRUDENCE 

change  con-  found  change  thus  concealed  beneath  ancient  forms  is  embodied 
neath  in  the  practical  effect  finally  given  to  the  results  of  the  Revolu- 

tion, by  virtue  of  the  arrangement  under  which  the  represent- 
ative chamber  now  administers  the  royal  authority  through 
a  committee  of  its  own  members  called  the  cabinet.  The 
outcome  of  the  first  efforts  made  to  establish  such  an  arrange- 
ment during  the  reigns  of  William  III.,  Anne,  and  the  first 
two  Georges  was  so  unsubstantial  that  George  III.,  during  the 
Work  of  first  ten  years  of  his  reign,  was  able  to  efface  it  almost  entirely. 
iorge  T  '  So  completely  was  he  successful  that  when  the  members  of 
the  federal  convention  that  met  in  Philadelphia  in  1787  took 
the  executive  as  then  existing  in  the  English  constitution  for 
their  model,  the  present  cabinet  system  did  not  exist  either 
in  theory  or  in  fact.  That  it  did  not  then  exist  in  theory  is 
put  beyond  all  question  by  the  contemporary  works  of  Black- 
stone,  De  Lolme,  Paley,  and  others,  who,  without  even  referring 
to  the  existence  of  the  cabinet,  formulated  a  doctrine  of 
Doctrine  of  " checks  and  balances"  absolutely  incompatible  with  it;  that 
balances8"  ^  did  not  then  exist  in  fact  is  equally  certain  because  at  that 
time  the  king  himself  and  not  the  prime  minister  was  the  real 
executive.  It  was,  therefore,  held  by  the  doctrinaires  at  that 
moment  that  the  supreme  sovereignty  was  vested  in  a  bal- 
anced union  of  three  elements,  —  democratic,  aristocratic, 
and  monarchical;  that  without  the  concurrence  on  equal 
terms  of  kings,  lords,  and  commons,  sovereignty  could  not 
be  properly  exercised.  The  corner-stones  of  the  theory  as 
thus  expounded  were,  first,  that  the  king  had  the  exclusive 
right  to  exercise  the  entire  executive  authority  through  min- 
isters appointed  by  himself  and  responsible  to  him  alone; 
second,  that  the  legislative  authority  was  divided  between 
king,  lords,  and  commons  as  coordinate  powers.  Only  by 
TWO  con-  contrasting  that  conception  of  the  constitution  with  that 
contrasted  wni°n  exists  to-day  can  we  estimate  the  immense  change  that 
has  actually  taken  place  during  the  intervening  period.  The 


EXTERNAL  HISTORY  OF  ENGLISH  LAW  427 

existing  ministerial  system  was  so  completely  in  eclipse  a 

century  ago  that  it  could  not  be  perceived  even  by  the  most 

acute  observers  ;  to-day  it  is  the  central  figure  in  the  picture, 

the  great  driving  wheel  that  moves  the  entire  constitutional 

machinery.     The  indirect  source  of  its  power  is  the  electorate  ; 

the  direct,  the  House  of  Commons,  which  is  no  longer  looked 

upon  as  a  coordinate  department,  but  as  a  corporate  entity 

in  which  the  supreme  sovereignty  is  vested.     Upon  the  one 

hand  stands  the   crown,  with  all  its  prerogatives  vested  in 

a  committee  of  its  members  ;  on  the  other,  the  House  of  Lords 

as  a  mere  revising  chamber  to  counsel  against  the  making 

of  rash  and  ill-advised  decrees,  to  which  it  must  always  bow 

in  the  last  instance.    Thus  the  old  literary  theory  of  "  checks  oid  literary 

and  balances,"  based  upon  the  idea  of  a  coordination  between 

separate  and  coequal  powers,  has   completely  broken  down 


in  the  presence  of  the  incontestable  fact  that  the  English  accom- 
constitution   now   embodies   "the   close   union,    the  nearly  facts. 
complete  fusion,  of  the  executive  and  legislative   powers. 
No  doubt,  by  the  traditional  theory  as  it  exists  in  all  the 
books,   the    goodness    of    our   constitution   consists   in  the 
entire  separation  of  the  legislative  and  executive  authority, 
but   in   truth  its  merit  consists   in  their  singular  approxi- 
mation.    The  connecting  link  is  tine  cabinet.     By  that  new 
word  we  mean  a  committee  of  the  legislative  body  selected 
to  be  the  executive  body."  *     As  that  committee  draws  its 
authority  from  an  electorate  so  broad  as  to  be  removed 
only  by  a  single  step  from  manhood  suffrage,  it  may  now 
be  safely  assumed  that  the  cycle  has  come  round;  that  the 
gradual  and  silent  process  of  change  has  been  fully  worked  Medieval 
out  through  which  the  medieval  monarchy  has  been  finally 


transformed  into  the  hereditary  republic  in  which,  under  the  into  "» 

hereditary 

ancient  and  still  useful  forms  of  the  throne  and  the  regalia,  republic 
the  English  people  is  king. 

1  Bagehot,  pp.  10,  11. 


CHAPTER  V 


Effects  of 
physiog- 
raphy on 
state  build- 
ing in 
Great 

Britain  and 
the  United 
States. 


ENGLISH   LAW   IN   THE  UNITED   STATES 

1.  The  physiography  of  the  island  world  in  which  the 
English  kingdom  arose  determined  the  most  important  fact 
in  its  political  history.  By  the  narrowness  of  the  limits  of 
that  island  world  the  primitive  kingdoms,  loosely  united  for  a 
time  in  the  confederacies  composing  the  heptarchy,  were 
crowded  together  into  a  single  consolidated  state.  The 
group  of  English  colonies,  as  they  appear  upon  our  Atlantic 
seaboard  toward  the  close  of  the  eighteenth  century,  were 
a  substantial  reproduction  of  that  older  group  of  heptarchic 
commonwealths,  as  they  appear  in  Britain  in  the  tenth. 
And  yet,  despite  that  likeness,  the  younger  group  in  their 
efforts  at  union  were  unable  to  look  to  the  elder  group  for 
light  or  guidance,  for  the  reason  that  the  widely  different 
geographical  conditions  by  which  they  were  respectively 
surrounded  had  prescribed  for  each  a  widely  different  des- 
tiny. Confined  within  the  narrow  and  impassable  bounds 
of  an  island  world,  it  became  the  manifest  destiny  of  the 
English  states  in  Britain,  advancing  in  the  path  of  political 
aggregation,  to  coalesce  in  the  formation  of  a  single  con- 
solidated kingdom.  Situated  on  the  shores  of  an  almost 
boundless  continent,  it  became  the  manifest  destiny  of  the 
English  states  in  America,  advancing  in  the  path  of  political 
confederation,  to  unite  in  the  flexible  bonds  of  a  federal 
system  capable  of  unlimited  expansion.  Just  as  physical 
environment  impelled  the  English  kingdoms  in  Britain 
naturally  and  necessarily  to  coalesce  in  the  shape  of  a  con- 

428 


ENGLISH  LAW  IN  THE  UNITED  STATES  429 

solidated  kingdom  in  the  tenth  century,  so  did  the  same 
cause  prompt  the  English  commonwealths  in  America  natu- 
rally and  necessarily  to  coalesce  in  the  shape  of  a  federal 
commonwealth  in  the  eighteenth. 

2.  In  the  sketch  heretofore  drawn  of  the  growth  of  the  The  typical 
English  kingdom  the  conclusion  was  reached  that  out  of  a  state  in 
union  of  townships  grew  what  was  finally  known  in  England  Amenca- 
as  the  hundred ;  out  of  a  union  of  hundreds  grew  the  modern 
shire;    out  of  the  union  of  modern  shires  grew  the  consoli- 
dated  kingdom.    The    most    important   facts   involved   in 
that  process  of  state  building  are  that  the  Teutonic  con- 
querors of  Britain  accomplished  the  work  of   conquest   in 
small  companies,  and  that,  in  obedience  to  race  instinct, 
they  grouped  themselves  together  in  townships  out  of  whose 
union  arose  the  larger  aggregates.    The  power  to  subdue 
and  settle  a  new  country,  and  then  to  build  up  a  state  by 
that  process  of  aggregation,  constitutes  the  strength  of  the 
English  nation  as  a   colonizing  nation.     By  that   process,  strength  of 
capable  under  favorable  geographical  conditions  of  unlimited  j^tfjj?^  a 
expansion,  has  been  built  up  the  federal  republic  of  the  n°1t°^1ziDg 
United  States.    "In  America  ...  it  may  be  said  that  the 
township  was  organized  before  the  county,  the  county  before 
the  state,  the   state  before  the  Union."  1    In  the  effort  to 
recreate  the  process  through  which  the  English  colonies  in 
America  were  formed,  we  must  keep  steadily  in  view  the 
process  through  which  their  prototype  in  Britain  was  formed. 
The  elements  of  organization  in  both  were  the  same,  and  the 
general  principles  upon  which  such  elements  coalesced  were 
substantially  the  same.     It  may  be  stated  as  a  general  rule 

1  Tocqueville,  Democracy  in  America,  i.  49.  "Upon  the  township  was  formed 
the  county,  composed  of  several  towns  similarly  organized ;  the  state,  composed 
of  several  counties,  and,  finally,  the  United  States,  composed  of  several  states ; 
each  organization  a  body  politic,  with  definite  governing  powers  in  a  subordi- 
nate series."  Address  of  Mr.  Lewis  H.  Morgan  before  American  Association 
for  the  Advancement  of  Science,  Boston,  August  26,  1880. 


430 


THE  SCIENCE  OF  JURISPRUDENCE 


Process  of 
aggregation 
in  the 
United 
States. 


Township 
as  the 
active 
local  unit. 


County  as 
the  active 
unit. 


that  the  English  colony  in  America,  like  the  English  state 
in  Britain,  represented  an  aggregation  of  counties,  and  that 
each  county  represented  an  aggregation  of  townships.  The 
hundred,  the  intermediate  division,  appeared  in  some  of  the 
colonies,  but  being  unnecessary  to  the  local  wants  of  the 
new  land,  passed  out  of  view.1  In  some  instances  the  colony 
was  formed  by  the  coalescence  of  the  local  communities 
before  the  charter  was  granted;  in  others  the  charter  was 
granted  first,  and  the  colony  then  subdivided  into  districts 
as  the  local  communities  were  organized.  The  fruit  of  both 
processes  was  the  same,  —  a  dependent  state  subdivided  into 
counties  and  townships  as  the  organs  of  local  administration. 
In  the  northern  colonies,  where  population  became  dense, 
and  where  the  active  spirit  of  the  English  yeoman  and  trader 
reproduced  a  system  of  political  life  as  closely  organized  as 
it  was  vigorous,  the  township  became  the  active  agent  of 
local  administration  because  its  compact  organization  was 
better  adapted  than  that  of  the  shire  to  the  local  wants  of 
New  England.  In  the  southern  colonies,  where  population 
was  more  sparse,  and  where  the  southern  planter  repro- 
duced the  more  tranquil  life  of  the  English  gentleman,  who 
had  little  or  nothing  to  do  with  the  life  of  towns,  the  county 
became  the  active  organ  of  local  administration,  satisfying 
as  it  did  all  of  the  political  wants  of  a  rural  population.2 
The  soil  upon  which  the  English  colonies  in  America  were 
planted  was  granted  to  them  as  terra  regis  by  the  English 
crown;  it  was  not  granted  as  folkland  by  the  English  Par- 
liament. The  charters  under  which  the  colonial  govern- 

1  The  hundred  existed  in  Virginia  and  in  Maryland,  and  maybe  elsewhere. 
As  to  its  history  in  Virginia,  see  "Local  Institutions  of  Virginia,"  Ingle,  in 
Johns  Hopkins  Studies,  3d  series,  ii-iii.  41.  "A  tything  man  in  each  manor, 
a  constable  in  each  hundred."  Bacon,  Laws  of  Maryland,  1638. 

3  Edward  A.  Freeman,  writing  to  the  author  on  this  subject,  said :  "I  found 
in  Virginia  people  spoke  of  the  county  just  as  they  do  here.  In  New  England 
the  county  seemed  lost.  There  the  town  was  the  thing  when  the  city  had  not 
swallowed  it  up." 


ENGLISH  LAW  IN  THE  UNITED  STATES  431 

ments  were  organized  were  likewise  royal  grants;  they 
were  not  concessions  from  the  English  legislature.  In  con- 
templation of  English  law  the  group  of  colonial  governments 
in  America  created  or  confirmed  by  royal  charters  were  mere  Colonies 
corporations  created  by  the  king,  and  subject  like  all  others 
of  their  kind  to  his  visitorial  powers,  and  to  the  power  of  his 
courts  to  dissolve  them  in  a  proper  case  presented  for  that 
purpose.1  Until  some  cause  of  forfeiture  arose  the  grant,  as 
between  the  crown  and  the  patentees,  was  irrevocable,  it 
being  the  settled  doctrine  of  English  law  that  after  a  grant 
of  corporate  powers  made  by  the  crown  had  been  once  ac- 
cepted, the  crown  could  not  resume  the  grant  without  the 
consent  of  those  in  whom  the  privileges  had  been  vested.2 
The  irrevocable  rights  thus  acquired  by  the  colonists  as 
against  the  crown  were  revocable,  however,  at  the  hands  of 
the  Parliament.  Subject  to  the  illimitable  power  of  the 
Imperial  Parliament,  the  English  crown  organized  upon  the 
soil  of  the  New  World  a  group  of  colonial  governments 
whose  differences  of  internal  organization  and  whose  greater 
or  less  dependence  upon  the  crown  distinguished  them 
broadly  from  each  other.  Those  colonies  to  which  the. 
crown  gave  most  sparingly  the  right  to  regulate  their  own 
affairs  are  generally  known  as  royal  colonies,  —  a  typical  Royal 
representative  of  which  may  be  found  in  the  colony  of  Vir-  virginia.~ 
ginia,  whose  early  constitutional  growth  happily  illustrates 
the  process  of  evolution  through  which  the  most  dependent 
of  the  English  settlements  in  America  was  rapidly  trans- 
formed from  a  servile  corporation  into  a  self-governing 
state  organized  upon  the  model  of  the  English  kingdom.  In 
the  same  sense  in  which  Virginia  stands  as  the  typical  repre- 
sentative of  the  royal  colonies,  Massachusetts  stands  as  the 

1  The  charter  of  Massachusetts  was  canceled  in  1684  by  the  crown  judges 
in  a  proceeding  begun  by  scire  facias  (Palfrey,  New  England,  iii.  391-393) ;  that 
of  Virginia,  by  a  legal  judgment  rendered  in  1624. 

3  Cf.  Dillon,  Municipal  Corporations,  i.  109,  2d  ed.,  and  cases  cited. 


432 


THE  SCIENCE  OF  JURISPRUDENCE 


Charter 
colonies  — 
Massachu- 
setts. 


Proprie- 
tary system 
—  Mary- 
land. 


Founda- 
tion of 
colonial 
fabric 
English 
law. 


typical  representative  of  the  opposite  class, —  consisting  of 
Massachusetts,  Rhode  Island,  and  Connecticut, —  generally 
known  as  the  charter  colonies,  despite  the  fact  that  their 
foundations  were  laid  without  the  aid  or  sanction  of  charters 
at  all.1  Between  the  royal  and  charter  governments  stood 
a  middle  class  known  as  proprietary,  which  approached  nearer 
to  the  latter  than  the  former  in  respect  to  their  freedom 
from  royal  control.  The  proprietary  system,  which  grew  out 
of  the  idea  that  the  work  of  colonization  could  be  better  done 
by  private  individuals  than  by  corporate  enterprise,  rested 
upon  a  series  of  grants  made  by  the  crown  to  one  or  more 
proprietors  of  vast  tracts  of  land  coupled  with  an  almost 
unlimited  power  of  government  and  legislation.  The  first 
proprietary  government  that  bore  fruit  was  that  of  Mary- 
land, whose  constitutional  history  begins  with  the  grant 
made  in  1632  to  the  first  Lord  Baltimore.  "The  Province 
was  made  a  county  palatine,  and  the  Proprietary  was  in- 
vested with  all  the  royal  rights,  privileges,  and  prerogatives, 
which  had  ever  been  enjoyed  by  any  Bishop  of  Durham  within 
his  county  palatine."2  The  foundation  of  the  entire  fabric 
was  English  law.  In  the  original  charter  it  was  provided 
"that  all  and  every  the  persons,  being  our  subjects  which 
shall  go  and  inhabit  within  the  said  colony  and  plantation, 
and  every  their  children  and  posterity,  which  shall  happen 
to  be  born  within  any  of  the  limits  thereof,  shall  have  and 


1  Tocqueville  has  well  said  that  "in  general,  charters  were  not  given  to  the 
colonies  of  New  England  till  their  existence  had  become  an  established  fact. 
Plymouth,    Providence,   New   Haven,   Connecticut,    and   Rhode   Island   were 
formed  without  the  help  and  almost  without  the  knowledge  of  the  mother 
country."     Democracy  in  America,  i.  45.     Connecticut  has  been  graphically 
described  as  "a  state  which  was  born,  not  made."     See  "The  Genesis  of  the 
New  England  State,"  Johnston,  Johns  Hopkins  Studies,  1st  series,  xi.  6. 

2  Narrative  and  Critical  History,  iii.  520.     There  were  manors  in  Maryland, 
and  courts  baron  and  courts  leet  were  held  there.     See  Taylor,  The  Origin  and 
Growth  of  the  English   Constitution,    i.    32-33.     As   to   Carolina   and    Locke's 
Fundamental  Constitutions,  see  for  the  first  draft,  Carroll,  ii.  361 ;  for  the  later 
modifications,  Shaftesbury  Papers  for  the  years  under  which  they  were  issued. 


ENGLISH  LAW  IN  THE  UNITED  STATES  433 

enjoy  all  liberties,  franchises,  and  immunities  of  free  deni- 
zens and  natural  subjects  within  any  of  our  other  dominions, 
to  all  intents  and  purposes  as  if  they  had  been  abiding  and 
born  within  this  our  realm  of  England,  or  in  any  other  of  our 
dominions."  *  The  heart  of  North  America,  which  passed  Heart  of 
to  the  English  crown  by  right  of  discovery,  was  granted  to  America 


the  two  trading  companies  created  by  the  charter  of  1606,  (fJJ 
as  any  royal  manor  might  have  been  granted.    The  granting  a  r°yal 

manor. 

clause  of  the  charter  is,  "To  be  holden  of  us,  our  heirs  and 
successors,  as  our  manor  of  East-Greenwich,  in  free  and 
common  socage,  and  not  in  capite."  The  fact  that  the  soil 
upon  which  the  English  colonies  in  America  were  planted 
came  to  them  through  royal  grants,  the  fact  that  every  form 
of  political  organization  established  thereon  rested  on  royal 
charters  were  the  foundation  stones  upon  which  the  colonies  American 
gradually  built  up,  in  the  light  of  their  actual  experience,  colonial0 


their  theory  of  the  political  relations  that  bound  them  to  the 
mother  country.  Their  rights  as  Englishmen  endowed  with 
"  all  liberties,  franchises,  and  immunities  of  free  denizens  and 
natural  subjects  "  flowed  from  their  charters,  which,  as  between 
themselves  and  the  crown,  were  irrevocable  through  not  non- 
forfeitable contracts.  The  earliest  form  of  direct  legislative 
control  to  which  any  of  the  colonies  were  subjected  in  the 
form  of  ordinances  or  instructions  for  their  government 
emanated,  not  from  the  law-making  power  of  the  king  in  ordaining 
Parliament,  but  from  the  ordaining  power  of  the  king  in  P^erof 
council.  Losing  sight  of  the  fact  that  England  had  grown  council. 
into  an  empire  since  the  work  of  colonization  began,  the 
colonists  clave  to  the  earlier  conception  which  regarded  the 
home  Parliament  simply  as  the  legislative  organ  of  the 
United  Kingdom.  As  such  they  held  it  had  no  right  to 
invade  the  jurisdictions  of  their  colonial  assemblies  in  order 
to  legislate  directly  upon  their  internal  concerns.  Out  of 

1  Charters  and  Constitutions,  pt.  ii.,  p.  1891. 
2F 


434 


THE  SCIENCE  OF  JURISPRUDENCE 


Conflict 
between 
English  and 
colonial 
theories. 


Colonies 
transformed 
into  sover- 
eign states. 


Substantial 
reproduc- 
tions of 
English 
kingdom. 


the  conflict  that  finally  arose  between  English  and  colonial 
theories  as  to  the  practical  omnipotence  of  the  Imperial 
Parliament  over  self-governing  communities  beyond  the 
four  seas,  grew  the  war  of  the  Revolution,  and  the  severance 
of  the  colonies  from  the  mother  country. 

When  the  tie  of  political  dependence  that  bound  the 
colonies  to  the  mother  country  was  severed,1  the  English 
provinces  in  America  rose  to  the  full  stature  of  sovereign 
states.  "When  the  Revolution  took  place  the  people  of 
each  state  became  themselves  sovereign."  2  And  as  soon 
as  they  "  took  into  their  own  hands  the  powers  of  sovereignty, 
the  prerogatives  and  regalities  which  before  belonged  either 
to  the  crown  or  the  Parliament  became  immediately  and 
rightfully  vested  in  the  state."  3  On  the  10th  of  May,  1776, 
the  Continental  Congress  recommended  to  the  several  con- 
ventions and  assemblies  of  the  colonies  the  establishment 
of  independent  governments  "for  maintenance  of  internal 
peace  and  the  defense  of  their  lives,  liberties,  and  proper- 
ties." 4  Before  the  end  of  the  year  in  which  the  recommen- 
dation was  made,  by  far  the  greater  part  of  the  colonies  had 
adopted  written  constitutions  in  which  were  restated  in  a 
dogmatic  form  all  of  the  seminal  principles  of  the  English 
constitutional  system.  Thus  ended  that  marvelous  process 
of  growth  through  which  the  English  colonies  in  America 
were  rapidly  developed  into  a  group  of  independent  com- 
monwealths in  which  each  individual  member  was,  in  its 
organic  structure,  a  substantial  reproduction  of  the  English 
kingdom.5  With  the  adoption  of  the  written  constitutions 
of  1776,  the  typical  English  state  in  America  reached  its 

1  Turgot  said:  "Colonies  are  like  fruits,  which  cling  to  the  tree  only  till 
they  ripen.  As  soon  as  America  can  take  care  of  itself  it  will  do  what  Carthage 
did."  Oeuvres  de  M.  Turgot,  Paris,  1808-1811,  ii.  19,  66. 

*  C.  J.  Taney,  in  Martin  v.  The  Lessee  of  Waddell,  16  Peters,  410. 

'  Ibid.  416.  *  See  Charters  and  Constitutions,  i.  3. 

•  I  can  here  say  with  Professor  Seeley,  "  By  England  I  mean  solely  the  state 
or  political  community  which  has  its  seat  in  England."     The  Expansion  of 
England,  p.  7. 


ENGLISH  LAW  IN  THE  UNITED  STATES  435 

full   growth.    When   the   offspring   is   compared   with   the 

parent,  when  the  English  state  in  America  is  compared  with 

the  English  state  in  Britain,  the  resemblance  is  too  close  for 

the  relationship  to  escape  the  most  careless  observer.     In  Subetmc- 

both  the  political  substructure  is  the  same,  —  the  ancient 


Teutonic  system  of  local,  self-governing  communities  com- 
posed of  the  township,  the  hundred,  and  the  shire.     In  each, 
municipal  organization  rests  upon  substantially  the  same 
foundation.    So   far  as  central   organization   is   concerned,  Central 
every  American  state  is  a  mere  reproduction  of  the  central  Ration" 
organization   of    the   English   kingdom   with   such   modifi- 
cations as  have  necessarily  resulted  from  the  abolition  of 
nobility,  feudality,  and  kingship.     In  the  new  as  in  the  old 
the  central  powers  of  the  state  are  divided  into  the  three 
departments,  —  legislative,  executive,  and  judicial,  —  which,  Division 
in  the  same  qualified  sense,  are  separate  and  distinct  from  °  ^ 
each  other.1    So  far  as  the  legislative  department  is  con- 
cerned, the  English  bicameral  system  everywhere  reappeared.2 
Our  houses  of  representatives  are  nothing  but  the  House  of  Legislative 
Commons  over  again,  while  our  state  senates  represent  the 
House  of  Lords  with  the  elective  principle  substituted  in  lieu 
of   hereditary   right.8    "The   governor   of   the   independent 
state  succeeded  the  governor  of  the  dependent  colony,  and 
he,  whether  elected  or  nominated,  was  essentially  a  reflected 
image  of  kingship.     The  governor  of  the  state  retained  the 
position  of  the  governor  of  the  colony,  with  such  changes  as 
a  Republican  system  necessarily  required."  4     So  far  as  ju-  judicial  or- 
dicial  organization  is  concerned,  there  has  been  but  a  slight  gan 
departure  from  the  ancient  original.    Such  differences  as  do 

1  See  Federalist,  no.  xlvi.,  Dawson's  ed.,  pp.  334-342.  The  maxim  was  ac- 
cepted in  the  qualified  sense  in  which  it  was  understood  by  Montesquieu. 
Spirit  of  Laws,  bk.  xi.,  ch.  6.  See  also  Paul  Janet,  Histoire  de  la  Science  Poli- 
tique.  *  At  the  outset  Pennsylvania  and  Georgia  were  exceptions. 

*  The  ordinary  judicial  powers  of  the  House  of  Lords  were  everywhere  cut 
off,  except  in  New  York,  where  the  senate  was  made  a  supreme  court  of  appeal. 

4  Freeman,  History  of  the  Federal  Government,  i.  314,  note  1. 


436  THE  SCIENCE  OF  JURISPRUDENCE 

exist  are  rather  differences  of  detail  than  of  organic  struc- 
ture. In  both  systems  the  unit  of  local  judicial  administra- 
tion is  the  county  where  all  causes,  except  equity  and  pro- 
bate causes,  are  tried  in  the  first  instance  according  to  the 
course  of  English  customary  law,  subject  to  review  in  a  cen- 
tral appellate  court  modeled  after  the  great  courts  at  West- 
minster. In  America  as  in  England  the  ancient  county 
court  is  overshadowed  by  the  assize  or  circuit  court  held 
periodically  in  every  county  by  the  itinerant  or  circuit  judge 
sent  to  preside  in  the  local  tribunals  by  state  authority.  In 
every  assize  or  circuit  court  held  where  English  law  prevails, 
the  jury  of  presentment  and  the  trial  jury  enter  as  compo- 
nent parts  into  the  structure  of  a  tribunal  which,  in  its 
modern  form,  is  the  special  possession  of  the  English  race. 
English  The  colonies  started  out  by  adopting  the  entire  body  of 
system.  English  law,  so  far  as  its  principles  could  be  adapted  to  their 
social  and  political  conditions,  including  admiralty  law. 
Upon  the  establishment  of  colonial  governments  "it  was 
deemed  proper  to  invest  the  governors  with  the  same  civil 
Admiralty  and  maritime  jurisdiction;  and  therefore  it  became  usual 
for  the  lord  high  admiral  or  the  lords  commissioners  to 
grant  a  commission  of  vice  admiral  to  them."  1  When  the 
first  Continental  Congress  of  1774  claimed  to  be  entitled  to 
the  benefit,  not  only  of  the  common  law  of  England,  but  of 
such  of  the  English  statutes  as  existed  at  the  time  of  the 
colonization,  and  which  they  had  by  experience  found  to  be 
applicable  to  their  several  local  and  other  circumstances, 
they  simply  declared  the  basic  principle  of  English  law  that 
English  subjects  going  to  a  new  and  uninhabited  country 
English  law  carry  with  them,  as  their  birthright,  the  laws  of  England 
birthright,  existing  when  the  colonization  takes  place.  And  here  let 
the  fact  be  emphasized  that  what  the  colonists  carried  with 

1  Stewart,  V.-Ad.  394,  405.     See  opinion  of  Mr.  Justice  Campbell  in  Jackson 
v.  Steamboat  Magnolia,  20  Howard  329-330. 


ENGLISH  LAW  IN  THE  UNITED  STATES  437 

them  was  the  entire  body  of  English  law,  a  composite  con-  A  composite 
sisting  of  five  elements:  (1)  customary  or  common  law;  elements. 
(2)  equity  law;  (3)  canon  law;  (4)  admiralty  law;  (5)  statute 
law.  Vexatious  confusion  has  arisen  out  of  the  attempt  to 
describe  that  composite  by  the  use  of  the  term  "common 
law,"  which  should  be  applied  only  to  one  of  the  five  elements 
composing  English  law.  The  fact  that  three  of  those  five 
elements  are  of  strictly  Roman  origin,  coupled  with  the 
further  fact  that  a  fourth,  the  common  law,  has  drawn  a 
mass  of  its  most  important  principles  from  the  same  source, 
should  certainly  suggest  the  question  whether  English  private 
law  can  be  said  to  be  a  distinct  and  indigenous  system  with 
a  character  all  its  own.  The  contention  is  repeated  here  that 
that  quality  belongs  to  English  public  law  only.  English 
law,  public  and  private,  continued  in  force  in  all  the  states  English  law 
that  became  sovereign  in  1776,  each  state  declaring  for  itself  forced  all"1 


the  date  from  which  it  would  recognize  it.  The  constitution 
of  New  York,  of  1777,  declared  that  such  parts  of  the  common  tain  dates- 
law  of  England,  and  of  the  statute  law  of  England  and  Great 
Britain,  as,  together  with  the  acts  of  the  colonial  legislature, 
formed  the  law  of  the  colony  on  the  19th  of  April,  1775, 
should  continue  to  be  the  law  of  the  state.  The  common 
and  statute  laws  of  England,  prior  to  the  fourth  year  of  James 
I.,  and  of  a  general  nature  were  adopted  by  the  convention 
of  Virginia,  in  1776  and  in  1795  and  in  1805  by  the  govern- 
ment of  Ohio.  In  many  of  the  states  all  statutes  and  acts  of 
the  English  Parliament  passed  prior  to  the  fourth  year  of 
James  I.  are  declared  to  be  a  part  of  the  law  of  the  state, 
while  it  may  be  stated,  as  a  general  rule,  that  English  statutes 
passed  before  the  emigration  of  our  ancestors,  in  aid  or 
amendment  of  the  common  law,  applicable  to  our  condition, 
and  not  repugnant  to  our  institutions  and  form  *  of  govern- 

1  Patterson  v.  Winn,  5  Peters  233  ;  Sackett  ».  Sackett,  8  Pick.  309  ;  Bogar- 
dus  v.  Trinity  Church,  4  Paige  198  ;  The  Heirs  of  Girard  v.  The  City  of  Phila- 
delphia, 4  Rawle  333.  See  also  Kent,  Com.,  12th  ed.  (Holmes),  i.  645  sq. 


438 


THE  SCIENCE  OF  JURISPRUDENCE 


English 
decisions 
authorita- 
tive. 


Consti- 
tutional 
limitations 
an 

American 
invention. 


Their 
origin  in 
colonial 
charters. 


ment,  constitute  a  part  of  what  is  usually  called  our  common 
law.  In  the  same  way  English  decisions  rendered  prior  to 
the  war  of  the  Revolution  form  a  part  of  the  common  law  of 
the  United  States  and  are  binding  on  American  courts.  On 
the  other  hand,  it  is  equally  well  settled  that  English  deci- 
sions rendered  since  that  time  are  not  authoritative,  only 
persuasive.  By  the  Kentucky  act  of  1807  the  reading  of 
such  decisions  made  since  July  4,  1776,  was  expressly  for- 
bidden.1 

3.  It  has  ever  been  an  elementary  principle  of  American 
constitutional  law  that  every  state  legislature  is  endowed  by 
its  very  nature  with  the  omnipotence  of  the  English  Parlia- 
ment, save  so  far  as  that  omnipotence  is  restrained  by  express 
constitutional  limitations.2  That  invention  embodies  the 
fundamental  difference  that  divides  two  kindred  political 
systems,  the  one  resting  on  the  sovereignty  of  the  people  as 
expressed  in  written  constitutions,  the  other  on  the  sover- 
eignty of  Parliament.  Such  limitations,  of  which  the  Euro- 
pean world  knew  nothing,  grew  naturally  out  of  the  process 
through  which  American  legislatures  came  into  existence. 
From  the  very  beginning  the  powers  of  the  colonial  assem- 
blies were  more  or  less  limited  through  the  terms  of  the 
charters  by  which  such  assemblies  were  either  created  or 
recognized.  Even  in  colonial  times  "questions  sometimes 
arose  .  .  .  whether  the  statutes  made  by  these  assemblies 
were  in  excess  of  the  powers  conferred  by  the  charter;  and 
if  the  statutes  were  found  in  excess,  they  were  held  invalid 
by  the  courts,  —  that  is  to  say,  in  the  first  instance,  by  the 

1  In  Hickman  v.  Boffman,  decided  in  1808,  by  the  Kentucky  Court  of  Ap- 
peals, and  reported  in  Hardin's  Reports,  356,  the  Chief  Justice  stopped  Mr. 
Clay  when  he  offered  to  read  from  3  East's  Reports,  199, 200,  stating  that  it  was 
a  violation  of  the  act  of  the  last  assembly.  And  yet  the  two  great  streams 
of  American  and  English  law  are  still  flowing  on  side  by  side  in  two  distinct 
channels. 

3  See  Cooley,  Constitutional  Limitations,  p.  107  and  cases  cited ;  Mangan  v. 
State,  76  Ala.  60 ;  Davis  v.  State,  68  Ala.  58. 


ENGLISH  LAW  IN  THE  UNITED  STATES  439 

colonial  courts,  or,  if  the  matter  was  carried  to  England,  by 
the  Privy  Council."1  The  colonial  charter  embodied  a 
system  of  government  established  by  a  superior  authority, 
creating  a  subordinate  law-making  body  that  could  do 
everything  except  violate  the  terms  and  transcend  the  powers 
of  the  instrument  to  which  it  owed  its  existence.  So  long  as 
the  colony  remained  under  the  English  crown,  the  superior 
authority  which  could  amend  or  remake  the  system  of  gov- 
ernment was  the  English  crown  or  Parliament.  When  the 
tie  binding  the  colonies  to  the  mother  country  was  severed, 
that  authority  passed  over,  not  to  the  state  legislature,  which 
remained  limited,  as  it  always  had  been,  but  to  the  people  of 
the  independent  commonwealth,  whose  will  speaks  through 
what  is  now  the  state  constitution,  just  as  the  will  of  the 
crown  or  Parliament  had  spoken  through  the  charters  of 
1628  and  1691.  While,  as  a  general  rule,  the  colonies,  after 
being  transformed  into  independent  states,  adopted  new 
constitutions,  the  charter  granted  to  Connecticut  in  1662  was  charters  of 
continued  as  her  organic  law  until  1818;  and  that  granted  andiihode* 
to  Rhode  Island  in  1663  was  continued  as  her  organic  law  Island- 
until  1842.3  It  is  worthy  of  note  that  one  of  the  first  cases, 
if  not  the  very  first,  in  which  a  legislative  enactment  was 
declared  unconstitutional  and  void,  on  the  ground  of  con- 
flict with  the  constitution  of  a  state,  was  decided  under  the 
charter  last  named.  In  Trevett  v.  Weeden,  decided  in  Rhode 
Island  in  1786,  an  act  was  declared  void  because  it  impaired  power  to 
the  right  of  trial  by  jury  guaranteed  by  the  colonial  charter.  f^^ative 
In  the  case  of  Bayard  v.  Singleton,3  which  came  before  the  act  void- 
supreme  court  of  North  Carolina  in  November,  1787,  an  act 
passed  in  1785,  authorizing  summary  proceedings  in  suits 
concerning  confiscated  property,  was  declared  void  because 

1  Bryce,  The  American  Commonwealth,  i.  243,  415. 

8  Charters  and  Constit-utions,  pt.  i.,  p.  252 ;  pt.  ii.,  p.  1603. 

»  Martin  (N.C.),  p.  48. 


440 


THE  SCIENCE  OF  JURISPRUDENCE 


Judge- 


destructive  of  the  right  of  trial  by  jury.  In  Holmes  v.  Walton, 
cited  in  9  N.J.L.  444,  an  act  was  declared  void  which  provided 
for  trials  by  juries  consisting  of  six  men.1  But  what  is  far 
more  important  is  the  fact  that  this  novel  and  supreme  power 
of  declaring  an  act  of  the  legislature  void  was  assumed  by 
the  state  courts,  as  a  judge-made  law,  without  a  line  or  word 
of  authority  on  the  subject  in  the  state  constitutions.  The 
state  judges  simply  reasoned  out  the  right  on  abstract  prin- 
ciples. As  an  illustration,  reference  may  be  made  to  the 
words  of  Wythe,  J.,  who,  in  the  case  of  Com.  v.  Caton,2  said: 
"Nay,  more,  if  the  whole  legislature,  an  event  to  be  depre- 
cated, should  attempt  to  overleap  the  bounds  prescribed  to 
them  by  the  people,  I,  in  administering  the  public  justice  of 
the  country,  will  meet  the  united  powers,  at  my  seat  in  this 
tribunal;  and,  pointing  to  the  constitution,  will  say  to  them, 
Here  is  the  limit  of  your  authority  ;  and  hither  shall  you  go, 
but  no  farther."  When  the  new  system  of  limitations,  thus 
developed  in  the  states,  was  lifted  into  a  higher  sphere  through 
its  application  to  the  legislative  power  vested  in  the  unique 
federal  republic  created  by  the  constitution  of  1787,  the 
inevitable  outcome  was  the  Supreme  Court  of  the  United 
States,  the  only  court  in  history  that  has  ever  assumed  the 
right  to  pass  on  the  validity  of  a  national  law.  As  there  is 
no  line  or  word  in  the  federal  constitution  intimating  directly 
^ne  existence  of  such  a  right,  it  was  there  reasoned  out,  as  in 
constitution  ^ne  states,  as  a  matter  of  judge-made  law.  Not  until  thir- 

to  declare 

an  act  void,  teen  years  after  the  organization  of  the  Supreme  Court  was 
the  first  attempt  made,  in  the  case  of  Marbury  v.  Madison3 
(1803),  to  put  the  stamp  of  nullity  upon  a  national  law;  and 
not  until  twenty  years  after  its  organization  was  the  first 
attempt  made,  in  the  case  of  Fletcher  v.  Peck4  (1810),  to  put 

1  For  a  more  extended  statement  of  the  cases,  see  Taylor,  Jurisdiction  and 
Procedure  of  the  Supreme  Court  of  the  United  States,  pp.  2-5. 

2  4  Call  (Va.)  5-21.  *  1  Cranch  137.  *  6  Cranch  87. 


No  express 


ENGLISH  LAW  IN  THE  UNITED  STATES  441 

the  stamp  of  nullity  upon  a  state  law,  —  in  both  instances  by 

reason  of  repugnancy  to  the  federal  constitution.    The  earnest- 

ness with  which  both  conclusions  were  resisted  forced  the 

court,  speaking  through  Marshall,  C.J.,  to  vindicate  by  argu-  Marshall's 

ment  its  authority  to  assert  them.    In  the  first  case  it  said:  "^^2 

"  The  question  whether  an  act  repugnant  to  the  constitution  of  the  right> 

can  become  a  law  of  the  land  is  a  question  deeply  interesting 

to  the  United  States;   but  happily  not  of  an  intricacy  pro- 

portioned to  its  interest.    It  seems  only  necessary  to  recog- 

nize certain  principles  supposed  to  have  been  long  and  well 

established  to  decide  it.  ...    The  powers  of  the  legislature 

are  defined  and  limited;   and,  that  those  limits  may  not  be 

mistaken  or  forgotten,  the  constitution  is  written."    And  in 

the  second:    "The  restrictions  on  the  legislative  power  of 

the  states  are  obviously  founded  in  this  sentiment;  and  the 

constitution  of  the  United  States  contains  what  may  be 

deemed  a  bill  of  rights  for  the  people  of  each  state."    Thus, 

by  means  of  judicial  logic,  and  not  by  the  authority  of  an 

express  constitutional  provision,  was  the  Supreme  Court  of 

the  United  States  able  to  maintain  its  right  to  put  the  stamp 

of  nullity  upon  a  law,  state  or  federal. 

From  the  days  of  the  Greek  Leagues  down  to  the  making  A  federal 
of  the  second  constitution  of  the  United  States,  all  federal 
governments  had  been  constructed  on  a  single  plan  at  once 


clumsy   and   inefficient.    The   most   perfect   of   the   Greek  an  Ameri- 

can inven- 

Leagues  was  the  Achaian,  of  which  the  framers  really  knew  tion. 
nothing  as  we  learn  from  Madison,  who  tells  us  in  the  Feder- 
alist 1  that  "  could  the  interior  structure  and  regular  opera-  History  of 
tion  of  the  Achaian  League  be  ascertained,  it  is  probable  that  federalism 
more  light  might  be  thrown  by  it  on  the  science  of  federal 
government  than  by  any  like  experiments  with  which  we  are  1787 
acquainted."     The  coveted   knowledge  was  not  accessible 
because  the  historical  scholars  who  have  since  passed  beyond 

1  No.  xviii. 


442  THE  SCIENCE  OF  JURISPRUDENCE 

the  Greece  of  Thucydides  into  the  Greece  of  Polybios,  who 
have  passed  beyond  the  period  in  which  the  independent 
city-commonwealth  was  the  dominant  political  idea  into 
the  later  and  less  brilliant  period  of  Hellenic  freedom  occu- 
pied by  the  history  of  Greek  federalism,  had  not  then  com- 
pleted their  investigations,  only  fully  worked  out  in  very 
recent  years.1  Such  scanty  knowledge  as  the  framers  did 
possess  of  Greek  federalism  seems  to  have  been  chiefly  drawn 
from  the  little  work  of  the  Abbe"  Mably,  Observations  sur 
I'Histoire  de  Grbce?  The  only  federal  governments  with 
whose  internal  organizations  the  builders  of  our  federal 
republic  were  really  familiar,  and  whose  histories  had  any 
practical  effect  upon  their  work,  were  those  that  had  grown 
up  between  the  Low-Dutch  communities  at  the  mouth  of  the 
Rhine,  and  between  the  High-Dutch  communities  in  the 
mountains  of  Switzerland,  and  upon  the  plains  of  Germany.3 
Teutonic  Down  to  the  making  of  the  second  constitution  of  the  United 
ions.  gkrtgg^  the  Confederation  of  Swiss  Cantons,  the  United  Prov- 
inces of  the  Netherlands,  and  the  German  Confederation 
really  represented  the  total  advance  made  by  the  modern 
world  in  the  structure  of  federal  governments.  Such  ad- 
vance was  embodied  in  the  idea  of  a  federal  system  made  up 
of  a  union  of  states,  cities,  or  districts,  representatives  from 
which  composed  a  single  federal  assembly  whose  limited 
powers  could  be  brought  to  bear,  not  upon  individual  citi- 
zens, but  only  upon  cities  or  states  as  such.  The  funda- 
mental principle  upon  which  all  such  fabrics  rested  was  the 
Requisition  requisition  system,  under  which  the  federal  assembly  was 
system.  onjv  en{jowed  wj^  t,he  power  to  make  requisitions  for  men 
and  money  upon  the  states  or  cities  composing  the  league 
for  federal  purposes,  while  the  states,  alone,  in  their  corporate 

1  The  first  volume  ("  History  of  Greek  Federations  ")  of  Edward  A.  Freeman's 
great  History  of  Federal  Government  was  not  published  until  1863. 
8  Federalist,  No.  xviii.  '  Ibid.  nos.  xix.,  xx. 


ENGLISH  LAW  IN  THE  UNITED  STATES  443 

capacity  possessed  the  power  to  execute  them.  The  initial 
effort  of  the  English  colonies  in  America  along  the  path 
of  federal  union  ended  with  the  making  of  the  first  consti- 
tution of  the  United  States  embodied  in  the  Articles  of 
Confederation.  Up  to  that  point  nothing  new  had  been 
achieved ;  the  fruit  of  the  first  effort  was  simply  a  confedera- 
tion, constructed  upon  a  plan  over  two  thousand  years  old, 
which  could  only  deal  through  the  requisition  system  with 
states  as  states.  That  confederation  possessed  no  power 
(1)  to  operate  directly  upon  the  individual  citizen;  (2)  it  impotence 
had  no  independent  power  of  taxation;  (3)  the  federal  ofCon-0" 
head  was  not  divided  into  three  departments,  executive,  federatlon- 
legislative,  and  judicial;  (4)  the  federal  assembly  consisted 
of  one  chamber  instead  of  two.  The  lack  of  power  to  levy 
and  collect  for  itself  federal  or  national  taxes  rendered  our 
first  federal  government  preeminently  a  failure  as  a  finan- 
cial system,  dependent  as  it  was  upon  the  will  of  thirteen 
independent  legislatures. 

All  the  world  understands  in  a  vague  and  general  way  that  The  unique 
certain  path-breaking  principles  entered  into  the  structure  of  of^so! 
our  second  federal  constitution  of  1789  which  differentiate  it 
from  all  other  systems  of  federal  government  that  have  pre- 
ceded it.  M.  de  Tocqueville  gave  formal  expression  to  that  TocquevUie. 
understanding  when  he  said:  "This  Constitution,  which 
may  at  first  be  confounded  with  federal  constitutions  that 
have  preceded  it,  rests  in  truth  upon  a  wholly  novel  theory 
which  may  be  considered  a  great  discovery  in  modern  political 
science.  In  the  confederations  that  preceded  the  American 
Constitution  of  1789,  the  allied  states,  for  a  common  object, 
agreed  to  obey  the  injunctions  of  a  federal  government;  but 
they  reserved  to  themselves  the  right  of  ordaining  and  en- 
forcing the  execution  of  the  laws  of  the  Union.  The  Ameri- 
can States,  which  combined  in  1789,  agreed  that  the  federal 
government  should  not  only  dictate,  but  should  execute,  its 


444 


THE  SCIENCE  OF  JURISPRUDENCE 


"A  wholly 

novel 

theory." 


own  enactments.  In  both  cases  the  right  is  the  same,  but 
the  exercise  of  the  right  is  different ;  and  this  difference  pro- 
Gladstone,  duced  the  most  momentous  consequences."  1  Mr.  Gladstone 
simply  reiterated  that  idea  when  he  said:  "As  the  British 
Constitution  is  the  most  subtile  organism  which  has  proceeded 
from  progressive  history,  so  the  American  Constitution  is  the 
most  wonderful  work  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man."  That  master  of  the  history  of 
English  institutions  perfectly  understood  that  as  our  state 
constitutions  are  mere  reproductions,  mere  evolutions  from 
the  English  political  system,  so  our  second  federal  consti- 
tution is  a  new  invention  "struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man."  That  invention  of  a  new  type 
of  federal  government,  embodying,  as  Tocqueville  said,  "a 
wholly  novel  theory,"  is  so  unique  that  it  can  no  more  be 
confounded  with  any  preceding  federal  government  than  a 
modern  mogul  engine  can  be  confounded  with  an  ancient 
stagecoach.  Did  that  wonderful  invention,  which  has 
produced  such  momentous  consequences,  have  a  personal 
author,  like  all  other  inventions;  or  was  it  revealed  at  the 
same  moment,  and  in  some  mysterious  way,  to  a  large  num- 
ber of  persons,  thinking  and  acting  in  isolation  ?  Upon  that 
humanly  impossible  or  miraculous  theory  historians  of  our 
existing  Constitution  have  attempted  to  explain  the  origin 
of  the  unique  and  prearranged  plan  of  federal  government 
presented  to  the  Convention  which  sat  at  Philadelphia  dur- 
ing the  one  hundred  and  twenty-five  days  that  intervened 
between  May  14  and  September  17,  1787.  After  deducting 
recesses  and  holidays  there  could  not  have  been  more  than 
ninety  working  days.  No  one  has  ever  contended,  or  can 
ever  contend,  that  the  great  invention  in  question  was  made 
after  the  Convention  met,  for  the  simple  and  conclusive  reason 
that  it  was  the  basis  of  all  the  "plans"  save  one,  carefully 

1  Democracy  in  America,  i.  198,  199. 


ENGLISH  LAW  IN  THE  UNITED  STATES  445 

constructed  beforehand,  out  of  which  the  Constitution  was 
evolved.  Five  and  only  five  "plans,"  all  prearranged, 
were  submitted  to  the  Convention,  viz.,  the  Virginia  plan, 
the  Charles  Pinckney  plan,  the  Connecticut  plan,  the  Alex- 
ander Hamilton  plan,  and  the  New  Jersey  plan.  As  the  last 
only  proposed  a  revision  of  the  Articles  of  Confederation  it 
may  be  dismissed  from  consideration.  There  were  but  four  Basis  of 
plans  in  which  proposals  for  a  new  system  of  federal  govern- 
ment  were  embodied,  each  resting  upon  the  "wholly  novel 

tion  of  1787. 

theory"  which  has  produced  "the  most  momentous  con- 
sequences." 

A  distinguished  specialist  has  well  said  that  "the  Virginia 
plan  became  the  bedrock  of  the  Constitution." 1  That  plan, 
which  embodied  perfectly  every  phase  of  the  great  invention, 
was  drafted  by  Madison,  who  began  his  preparation  for  the 
labors  of  the  Convention  at  least  a  year  before  it  met.2  In 
December,  1786,  we  find  him  in  active  correspondence  with 
Jefferson,  then  at  Paris,  as  to  the  Virginia  plan.3  The  mar- 
vel is  that  the  historians  who  are  supposed  to  have  explored 
the  sources  have  never  taken  the  pains  to  ask  this  simple 
and  inevitable  question,  —  From  what  common  source  did  the  Were  they 
draftsmen  of  the  four  plans  draw  the  path-breaking  invention 
which  was  the  foundation  of  all  of  them  ?  Let  it  be  said  to  the 
honor  of  those  draftsmen  that  no  one  of  them  ever  claimed 
to  be  the  author  of  that  invention.  Neither  Madison,  nor 
Charles  Pinckney,  nor  Sherman,  nor  Ellsworth,  nor  Hamil- 
ton, nor  any  of  their  biographers,  so  far  as  the  author  is 
informed,  ever  set  up  such  a  claim  in  behalf  of  any  one  of 
them.  The  answer  to  "the  simple  and  inevitable  question" 
just  propounded  is  this:  The  common  source  from  which  the 

1  Meigs,  The  Growth  of  the  Constitution  in  the  Federal  Convention  of  1787,  p.  17. 

2  See  Rives,  Life  and  Times  of  Madison,  ii.  208,  "Preparations  of  Madison 
for  Labors  of  Federal  Convention." 

*  See  letter  of  Jefferson  to  Madison  of  December  16,  1786,  in  Jefferson's 
Correspondence,  by  T.  J.  Randolph,  ii.  64,  65. 


446 


THE  SCIENCE  OF  JURISPRUDENCE 


Pelatiah 
Webster's 
invention, 
February 
16, 1783. 


draftsmen  of  the  four  plans  drew  the  path-breaking  invention 
underlying  them  all  was  "A  Dissertation  on  the  Political 
Union  and  Constitution  of  the  Thirteen  United  States  of 
North  America,"  published  at  Philadelphia  by  Pelatiah 
Webster,  February  16,  1783,  and  there  republished  by  him 
with  copious  notes  in  1791,  and  herein  reproduced  for  the  first 
time  after  the  lapse  of  one  hundred  and  sixteen  years.  In 
that  immortal  paper,  whose  lightest  words  are  weighty,  he 
gave  to  the  world,  as  his  personal  contribution  to  the  science 
of  government,  and  as  an  entirety  worked  out  in  great  detail  the 
"wholly  novel  theory"  of  federal  government  upon  which 
reposes  the  existing  Constitution  of  the  United  States. 

Therein  he  propounded  to  the  world,  as  "  the  original 
thoughts  of  a  private  individual,  dictated  by  the  nature  of  the 
subject  only,"  the  four  novel  and  basic  principles  upon  which 
our  existing  Constitution  now  reposes. 

1.  The  principle  of  a  Federal  Government  operating  directly 
on  the  individual,  instead  of  upon  the  States  as  corporations. 

2.  The  division  of  a  Federal  Government  into  three  depart- 
ments, —  legislative,  executive,  and  judicial. 

3.  The  division  of  a  Federal  Legislature  into  two  chambers 
on  the  bicameral  plan. 

4.  A    Federal   Government   with    delegated   powers,   the 
residuum  of  power  remaining  in  the  States. 

Prior  to  the  date  in  question  no  single  element  of  that  theory 
had  ever  been  propounded  by  any  one.  In  a  note  appended  to 
His  account  the  republication  of  1791  the  great  inventor  gives  the  follow- 
ing account  of  the  circumstances  under  which  the  invention 
was  made :  "  At  the  time  when  this  Dissertation  was  written 
(February  16,  1783)  the  defects  and  insufficiency  of  the  Old 
Federal  Constitution  was  universally  felt  and  acknowledged; 
it  was  manifest,  not  only  that  the  internal  police,  justice,  se- 
curity, and  peace  of  the  States  could  never  be  preserved  under 
it,  but  the  finances  and  public  credit  would  necessarily  be- 


of  it. 


ENGLISH  LAW  IN  THE  UNITED  STATES  447 

come  so  embarrassed,  precarious,  and  void  of  support,  that  no 
public  movement,  which  depended  on  the  revenue,  could  be 
managed  with  any  effectual  certainty:  but  tho'  the  public 
mind  was  under  full  conviction  of  all  these  mischiefs,  and  was 
contemplating  a  remedy,  YET  THE  PUBLIC  IDEAS  WERE  NOT 

AT  ALL  CONCENTRATED,  MUCH  LESS  ARRANGED,  INTO  ANY  NEW 
SYSTEM  OR  FORM  OF  GOVERNMENT,  which  WOUld  obviate  these 

evils.  Under  these  circumstances,  I  offered  this  Disserta- 
tion to  the  public :  how  far  the  principles  of  it  were  adopted 
or  rejected  in  the  New  Constitution,  which  was  four  years 
afterwards  (September  17,  1787)  formed  by  the  General 
Convention,  and  since  ratified  by  all  the  States,  is  obvious 
to  every  one." 

At  the  same  time  he  added :  "  I  was  fully  of  opinion  (tho* 
the  sentiment  at  that  time  would  not  very  well  bear)  that  it 
would  be  ten  times  easier  to  form  a  new  Constitution  than  to  "Easier  to 
mend  the  old  one.1  I  therefore  sat  myself  down  to  sketch  out 
the  leading  principles  of  that  political  Constitution,  which  I 
thought  necessary  to  the  preservation  and  happiness  of  the  old  one." 
United  States  of  America,  which  are  comprised  in  this  Dis- 
sertation. I  hope  the  reader  will  please  to  consider,  that 
these  are  the  original  thoughts  of  a  private  individual,  dic- 
tated by  the  nature  of  the  subject  only,  long  before  the  im- 
portant theme  became  the  great  object  of  discussion,  in  the 
most  dignified  and  important  assembly  which  ever  sat  or 
decided  in  America."  The  great  inventor  perfectly  under- 
stood the  merits  of  his  own  case  which  he  thus  stated  with 
the  lucidity  of  a  Greek  and  the  terseness  of  a  Roman.  As 
early  as  1781  Pelatiah  Webster  was  the  first  to  propose  to  the  First  to 
people  of  the  United  States,  in  one  of  his  financial  essays 
published  at  Philadelphia  in  May  of  that  year,  the  calling  of 
"a  Continental  Convention"  for  the  making  of  a  new  con- 

1  The  italics   in   all   the   quotations   from    Pelatiah   Webster's    paper   are 
his  own. 


448  THE  SCIENCE  OF  JURISPRUDENCE 

stitution.1  In  bearing  testimony  to  that  fact  Madison  said 
that  Pelatiah  Webster,  "after  discussing  the  fiscal  system 
of  the  United  States,  and  suggesting,  among  other  remedial 
provisions,  one  including  a  national  bank,  remarks  that 
the  authority  of  Congress  is  very  inadequate  to  the  perform- 
ance of  their  duties;  and  this  indicates  the  necessity  of  their 
calling  a  Continental  Convention  for  the  express  purpose  of 
ascertaining,  defining,  enlarging,  and  limiting,  the  duties 
and  powers  of  their  Constitution."  2  Two  years  after  he 
had  thus  sounded  the  tocsin  for  the  states  to  assemble,  he 
made  the  invention  and  published  to  the  world,  in  detail,  the 
plan  upon  which  the  Constitution  was  to  be  formed.  While 
Bancroft's  the  historian  Bancroft 3  failed  to  appreciate  the  stupendous 
importance  of  his  work,  he  frankly  admits  that  he  actually 
performed  it  when  he  says:  "The  public  mind  was  ripening 
for  a  transition  from  a  confederation  to  a  real  government. 
Just  at  this  time  Pelatiah  Webster,  a  graduate  of  Yale  Col- 
lege, in  a  dissertation  published  at  Philadelphia,  proposed 
for  the  legislature  of  the  United  States  a  congress  of  two 
houses  which  should  have  ample  authority  for  making  laws 
'of  general  necessity  and  utility/  and  enforcing  them  as  well 
on  individuals  as  on  States.  He  further  suggested  not  only 
heads  of  executive  departments,  but  judges  of  law  and 
chancery.  The  tract  awakened  so  much  attention  that  it 
was  reprinted  in  Hartford,  and  called  forth  a  reply."  4  In 
both  of  the  scanty  and  stingy  biographical  notices  of  him  in 
the  leading  American  encyclopedias,  the  statement  is  made 

1  The  fact  that  "Alexander  Hamilton  made  the  same  suggestion  in  a  private 
letter  to  James  Duane,  September  3,  1780,"  is  of  no  importance.     It  was  not  a 
public  act,  not  even  a  public  declaration.     See  Gaillard  Hunt,  Life  of  James 
Madison,  p.  108. 

2  The  Madison  Papers  (1841),  ii.  706-707.     Bancroft  contends  that  Madison 
was  mistaken  in  attributing  this  pamphlet  of  1781  to  Pelatiah  Webster.     He 
thinks  its  author  was  William  Barton.     See  History  of  the  Constitution  of  the 
United  States,  i.  24  and  note  3. 

*  History  of  the  Constitution  of  the  United  States,  i.  86. 

*  It  was  replied  to  anonymously  by  Roger  Sherman. 


ENGLISH  LAW  IN  THE  UNITED  STATES  449 

that  his  plan  "is  mentioned  by  James  Madison  as  having  an  Madison's 
influence  in  directing  the  public  mind  to  the  necessity  of  a 
better  form  of  government."  Pelatiah  Webster  needs  the 
admissions  neither  of  Madison  nor  Bancroft  to  establish  his 
title  to  the  authorship  of  the  "wholly  novel  theory"  now 
embodied  in  the  Constitution  of  the  United  States,  because 
that  title  rests  upon  contemporary  documentary  evidence 
as  clear  and  convincing  as  that  upon  which  rests  Jefferson's 
title  to  the  authorship  of  the  Declaration  of  Independence. 
If  that  be  true,  then  he  has  made  a  larger  personal  contribu- 
tion to  the  science  of  government  than  any  other  one  individual 
in  the  history  of  mankind.  Among  our  nation  builders  he 
stands  second  to  Washington  alone.  And  yet  among  them 
all  he  only  has  been  neglected  and  forgotten  by  his  country- 
men, not  through  any  conscious  omission,  but  because  of  a 
careless  historical  scholarship  which  has  failed  to  present 
his  great  achievement  in  its  true  light. 

The  most  scientific  writer  upon  finance  during  the  Revo-  Pelatiah 
lutionary  War  was  Pelatiah  Webster,  whose  essays  on  that  as  1  writer 
subject  fill  a  volume.1    He  was  born  at  Lebanon,  Connecticut,  on  finance- 
in  1725,  and  graduated  at  Yale  College  in  1746.    In  1755 
he  removed  to  Philadelphia,  where  he  became  a  prosperous 
merchant,  and  in  due  time  an  ardent  supporter  of  the  pa- 
triot cause  in  the  War  of  the  Revolution,  aiding  with  pen 
and  purse.     He  was   captured  by  the  British,  and  on  ac- 
count of  his  ardor  was  imprisoned  for  four  months.    As 
early  as  October,  1776,  he  began  to  write  on  the  currency, 
and  in  1779  he  commenced  the  publication  at  Philadelphia 
of  a  series  of  "Essays  on  Free  Trade  and  Finance."     He  was 
sufficiently  important  as  a  political  economist  to  be  con-  Financial 
suited  by  the  Continental  Congress  as  to  the  resources  of  prehldeto 
the  country.    His  financial  studies  soon  convinced  him  that  mventlon- 

1  The  second  edition  of  1791  was  "Printed  and  sold  by  Joseph  Crukshank, 
No.  91  High  Street,  Philadelphia." 
20 


450  THE  SCIENCE  OF  JURISPRUDENCE 

no  stable  fiscal  system  could  be  established  until  the  then 
existing  federal  government  was  wiped  out  and  superseded 
by  one  endowed  with  independent  taxing  power.  Therefore, 
as  early  as  1781,  in  one  of  his  financial  essays,  he  made  the 
first  public  call  for  the  "Continental  Convention,"  referred 
to  by  Madison,  to  be  armed  with  power  to  devise  an  adequate 
system  of  federal  government.  Having  thus  taken  the  first 
step,  he  set  himself  to  work  to  formulate  in  advance  such  an 
adequate  system  as  the  Convention  should  adopt,  whenever 
it  might  meet.  In  the  great  tract  published  at  Philadelphia, 
February  16,  1783,  we  have  photographed  for  us  the  work- 
ings of  his  mind  as  he  moved  along  paths  never  trod  before. 
He  sounded  the  keynote  when  he  declared:  "They  (the 
The  supreme  power)  must  therefore  of  necessity  be  vested  with  a 

power'of       power  of  taxation.    I  know  this  is  a  most  important  and 
taxation.       weighty  truth,  a  dreadful  engine  of  oppression,  tyranny,  and 
injury,  when  ill  used ;   yet,  from  the  necessity  of  the  case,  it 
must  be  admitted. 

"  For  to  give  a  supreme  authority  a  power  of  making  con- 
tracts, without  any  power  of  payment  —  of  appointing  officers, 
civil  and  military,  without  money  to  pay  them;  power  to 
build  ships,  without  any  money  to  do  it  with;  a  power  of 
emitting  money,  without  any  power  to  redeem  it ;  or  of  borrow- 
ing money  without  any  power  to  make  payment,  etc.  —  such 
solecisms  in  government  are  so  nugatory  and  absurd,  that  I 
really  think  to  offer  further  argument  on  the  subject  would 
be  to  insult  the  understanding  of  my  readers.  To  make  all 
these  payments  dependent  on  the  votes  of  thirteen  popular 
assemblies,  who  will  undertake  to  judge  of  the  propriety  of 
every  contract  and  every  occasion  of  money,  and  grant  or 
urithhold  supplies  according  to  their  opinion,  whilst  at  the 
same  time  the  operations  of  the  whole  may  be  stopped  by 
the  vote  of  a  single  one  of  them,  is  absurd."  Thus  Pelatiah 
Webster  proposed  the  existing  system  of  federal  taxation, 


ENGLISH  LAW  IN  THE  UNITED  STATES  451 

then  entirely  new,  to  the  world;  thus  he  proposed  that  the 
ancient  system  of  requisitions,  resting  on  the  taxing  power 
of  the  states,  should  be  superseded  by  a  system  of  federal 
or  national  taxation  extending  to  every  citizen,  directly  or 
indirectly.  Instead  of  the  lifeless  system  of  absurdity  em- 
bodied in  the  Articles  of  Confederation,  he  proposed  to  sub- 
stitute a  self-executing  and  self-sustaining  national  system, 
based  on  the  following  propositions,  stated  in  his  own  lan- 
guage :  "  The  supreme  authority  of  any  State  must  have  power 
enough  to  effect  the  ends  of  its  appointment,  otherwise  these 
ends  cannot  be  answered  and  effectually  secured.  ...  I 
begin  with  my  first  and  great  principle,  viz.,  That  the  Consti-  Adequate 
tution  must  vest  powers  in  every  department  sufficient  to  secure 
and  make  effectual  the  ends  of  it.  The  supreme  authority 
must  have  the  power  of  making  war  and  peace  —  of  appointing  ment- 
armies  and  navies  —  of  appointing  officers  both  civil  and 
military  —  of  making  contracts  —  of  emitting,  coining,  and 
borrowing  money  —  of  regulating  trade  —  of  making  treaties 
with  foreign  powers  —  of  establishing  post  offices  —  and,  in 
short,  of  doing  everything  which  the  well-being  of  the  Common- 
wealth may  require,  and  which  is  not  compatible  to  any 
particular  State,  all  of  which  require  money,  and  cannot 
possibly  be  made  effectual  without  it.  ...  This  tax  can  be 
laid  by  the  supreme  authority  much  more  conveniently  than 
by  the  particular  Assemblies,  and  would  in  no  case  be  sub- 
ject to  their  repeals  or  modifications;  and  of  course  the 
public  credit  would  never  be  dependent  on,  or  liable  to  bank- 
ruptcy by  the  humors  of  any  particular  assembly.  .  .  .  The 
delegates  which  are  to  form  that  august  body,  which  are  to 
hold  and  exercise  the  supreme  authority,  ought  to  be  ap- 
pointed by  the  States  in  any  manner  they  please."  In  for-  Supremacy 
mulating  his  conclusions  as  to  the  supremacy  of  federal  ^wf  ' 
law  acting  directly  on  all  citizens,  he  said:  "(1)  N°  ^aws  °f 
any  State  whatever,  which  do  not  carry  in  them  a  force  which 


452 


THE   SCIENCE  OF  JURISPRUDENCE 


A  supreme 
and  self- 
executing 
federal 
govern- 
ment. 


A  strictly 
organized 
govern- 
ment. 


extends  to  their  effectual  and  final  execution,  can  afford  a  cer- 
tain or  sufficient  security  to  the  subject  —  this  is  too  plain  to 
need  proof;  (2)  laws  or  ordinances  of  any  kind  (especially 
of  august  bodies  of  high  dignity  and  consequence),  which  fail 
of  execution,  are  much  worse  than  none;  they  weaken  the  gov- 
ernment ;  expose  it  to  contempt.  ...  A  government  which 
is  but  half  executed,  or  whose  operations  may  all  be  stopped 
by  a  single  vote,  is  the  most  dangerous  of  all  institutions.  .  .  . 
Further  I  propose  that  if  the  execution  of  any  act  or  order 
of  the  supreme  authority  shall  be  opposed  by  force  in  any  of 
the  States  (which  God  forbid !),  it  shall  be  lawful  for  Congress 
to  send  into  such  State  a  sufficient  force  to  suppress  it.  On 
the  whole,  I  take  it  that  the  very  existence  and  use  of  our 
union  effectually  depends  on  the  full  energy  and  final  effect 
of  the  laws  made  to  support  it;  and  therefore  I  sacrifice  all 
other  considerations  to  this  energy  and  effect,  and  if  our  Union 
is  not  worth  this  purchase  we  must  give  it  up  —  the  nature 
of  the  thing  does  not  admit  any  other  alternative."  In  these 
ringing  terms  was  announced  the  path-breaking  invention  of 
a  supreme  and  self-executing  federal  government  operating 
directly  upon  the  citizen;  an  invention  for  which  the  world 
had  been  waiting  for  two  thousand  years;  an  invention  of 
which  no  trace  or  hint  is  to  be  found  in  the  Constitutions  of  any 
of  the  Teutonic  Leagues,  in  the  Articles  of  Confederation,  or  in 
the  prior  utterance  of  any  other  American. 

Having  thus  defined  his  fundamental  concept  of  a  federal 
government  operating  directly  on  the  citizen,  the  great  one 
boldly  accepted  the  inevitable  corollary  that  such  a  govern- 
ment must  be  strictly  organized  and  equipped  with  machin- 
ery adequate  to  its  ends,  —  with  the  usual  branches,  execu- 
tive, legislative,  and  judicial ;  with  its  army,  its  navy,  its  civil 
service,  and  all  the  usual  apparatus  of  a  government,  all 
bearing  directly  upon  every  citizen  of  the  Union  without 
any  reference  to  the  government  of  the  several  states.  No 


ENGLISH  LAW  IN  THE  UNITED  STATES  453 

such  federal  government,  ancient  or  modern,  had  ever 
existed.  As  Montesquieu  was  the  first  to  point  out,  the 
division  of  state  powers  into  executive,  legislative,  and 
judicial  originated  in  that  single  state  in  Britain  we  call 
England.1  From  that  single  state  the  principle  passed 
into  the  single  states  of  the  American  Union.2  Pelatiah 
Webster  was  the  first  to  conceive  of  the  application  of  the  Division  of 
principle  of  the  division  of  powers  to  a  federal  state;  he  was 
the  first  to  propose  that  the  federal  head  should  be  divided  8tate* 
and  then  organized  as  the  particular  ones  are  into  legis- 
lative, executive,  and  judicial.  More  than  three  years  later 
Jefferson  indorsed  that  idea  by  commending  it  to  Madison.3 
Having  thus  made  his  second  great  invention,  Webster 
proceeded  to  explain  how  the  three  departments,  executive, 
legislative,  and  judicial,  should  be  organized.  His  idea  was 
that  the  executive  power  should  be  vested  in  a  council  of 
ministers  to  be  grouped  around  a  president  elected  by  Con- 
gress. On  that  subject  he  said:  "These  ministers  will  of 


course  have  the  best  information,  and  most  perfect  knowledge,  executive* 
of  the  state  of  the  Nation,  as  far  as  it  relates  to  their  several  P°wer- 
departments,  and  will  of  course  be  able  to  give  the  best  infor- 
mation to  Congress,  in  what  manner  any  bill  proposed  will 
affect  the  public  interest  in  their  several  departments,  which 
will  nearly  comprehend  the  whole.  The  Financier  manages 
the  whole  subject  of  the  revenues  and  expenditures;  the 
Secretary  of  State  takes  knowledge  of  the  general  policy  and 
internal  government  ;  the  Minister  of  War  presides  in  the 
whole  business  of  war  and  defense;  and  the  Minister  of 
Foreign  Affairs  regards  the  whole  state  of  the  nation,  as  it 
stands  related  to,  or  connected  with,  all  foreign  powers.  .  .  . 
I  would  further  propose,  that  the  aforesaid  great  ministers  of 
state  shall  compose  a  Council  of  State,  to  whose  number  Congress 

1  Spirit  of  Laws,  bk.  xi.,  ch.  6.  *  Federalist,  no.  xlvi. 

1  In  the  letter  written  from  Paris,  December  16,  1786,  heretofore  cited. 


454  THE  SCIENCE  OF  JURISPRUDENCE 

may  add  three  others,  viz.,  one  from  New  England,  one  from 
the  Middle  States,  and  one  from  the  Southern  States,  one  of 
which  to  be  appointed  President  by  Congress."    To  the  or- 
ganization of  the  legislative  department  Webster  gave  elabo- 
A  bicameral  rate  consideration.    Just  as  no  prior  federal  government  had 
legislature,    ever  been  divided  into  three  departments,  so  no  prior  federal 
legislature  had  ever  been  divided  into  two  houses.    The  one- 
chamber  body  represented  by  the  Continental  Congress  was 
the  type  of  every  other  federal  assembly  that  had  ever  pre- 
ceded it.    As  stated  heretofore,  the  path-breaker,  looking 
to  the  English  bicameral  system  as  it  had  appeared  in  the 
several  states,  proposed  "that  the  Congress  shall  consist  of 
two  chambers,  an  upper  and  lower  house,  or  senate  and  com- 
mons, with  the  concurrence  of  both  necessary  to  every  act;  and 
that  every  State  send  one  or  more  delegates  to  each  house: 
this  will  subject  every  act  to  two  discussions  before  two  dis- 
tinct chambers  of  men  equally  qualified  for  the  debate,  equally 
masters  of  the  subject,  and  of  equal  authority  in  the  decision." 
Citizens  of  the  United  States,  to  whom  such  a  division  now 
seems  a  matter  of  course,  should  remember  that  when  Web- 
ster proposed  it,  it  was  an  unprecedented  novelty  in  the 
history  of  the  world,  so  far  as  federal  legislatures  were  con- 
cerned.   After  an  elaborate  discussion  of  the  qualifications 
of  members  of  Congress,  in  which  he  sharply  assailed  the 
then  existing  rule  forbidding  their  reelection,  he  proceeded 
Judicial  or-    to  define  a  part  of  the  original  jurisdiction  of  the  Supreme 
lon'    Court  of  the  United  States  by  saying  "that  the  supreme 
authority  should  be  vested  with  powers  to  terminate  and 
finally  decide  controversies  arising  between  different  States." 
He  also  said,  "To  these  I  would  add  judges  of  law  and  chan- 
cery."   Thus   the   entire   federal  judicial   system   was   dis- 
tinctly outlined.    Above  all  he  was  careful  to  define  the 
reserved  powers  of  the  states.    On  that  subject  he  said :  "  I 
propose  further,  that  the  powers  of  Congress,  and  all  the 


ENGLISH  LAW  IN  THE  UNITED  STATES  455 

other  departments  acting  under  them,  shall  all  be  restricted  Reserved 
to  such  matters  only  of  general  necessity  and  utility  to  all  the  testates 
States,  as  cannot  come  urithin  the  jurisdiction  of  any  par- 
ticular State,  or  to  which  the  authority  of  any  particular  State 
is  not  competent:  so  that  each  particular  State  shall  enjoy 
all  sovereignty  and  supreme  authority  to  all  intents  and 
purposes,  excepting  only  those  high  authorities  and  powers 
by  them  delegated  to  Congress,  for  the  purposes  of  the  gen- 
eral union."  In  that  passage  we  have  the  first  draft,  and  a 
very  complete  one,  of  the  Tenth  Amendment.1  So  it  is  a 
matter  of  documentary  evidence  that  every  element  that 
entered  into  the  "wholly  novel  theory,  which  may  be  con- 
sidered a  great  discovery  in  modern  political  science,"  and 
which  differentiates  our  second  federal  constitution  of  1789 
from  every  other  that  preceded  it,  was  the  deliberate  invention 
of  Pelatiah  Webster,  who  announced  to  the  world  that  theory, 
as  an  entirety,  in  his  epoch-making  paper  of  February  16, 1783. 
Prior  to  that  date  no  federal  government  had  ever  existed  Three  path- 
(1)  that  operated  directly  on  the  individual  citizen;  (2)  no  ideas.  g 
federal  government  had  ever  been  divided  into  three  depart- 
ments, executive,  legislative,  and  judicial;  (3)  no  federal 
legislature  had  ever  been  divided  into  an  upper  and  lower 
house.  There  is  no  record,  there  is  not  even  a  claim  that, 
prior  to  that  date,  any  human  being  had  ever  propounded 
any  one  of  those  principles  in  connection  with  a  federal  gov- 
ernment. The  great  inventor  was  so  conscious  at  the  time  inventor 
of  the  magnitude  of  his  undertaking  that  he  exclaimed  as  J^ 
he  wrote :  "  May  Almighty  wisdom  direct  my  pen  in  this  ardu- 
ous  discussion."  In  conclusion  he  said:  "This  vast  subject  taking, 
lies  with  mighty  weight  on  my  mind,  and  I  have  bestowed  on 
it  my  utmost  attention,  and  here  offer  the  public  the  best 

1  It  provides  that  "  the  powers  not  delegated  to  the  United  States  by  the 
Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the  States 
respectively  or  to  the  people." 


456  THE  SCIENCE  OF  JURISPRUDENCE 

thoughts  and  sentiments  I  am  master  of.  ...  I  have  not 
the  vanity  to  imagine  that  my  sentiments  may  be  adopted; 
I  shall  have  all  the  reward  I  wish  or  expect,  if  my  Disserta- 
tion shall  throw  any  light  on  the  great  subject,  shall  excite 
an  emulation  of  inquiry,  and  animate  some  abler  genius  to 
form  a  plan  of  greater  perfection,  less  objectionable,  and 
more  useful."  In  his  republication  of  1791  he  described 
perfectly  the  circumstances  under  which  the  great  invention 
of  February  16,  1783,  was  made,  when  he  said  that  "the 
public  ideas  were  not  at  all  concentrated,  much  less  arranged 
into  any  new  system  or  form  of  government,  which  would 
obviate  these  evils.  Under  these  circumstances  I  offered 
this  Dissertation  to  the  public."  In  that  Dissertation, 
Pelatiah  Webster  presented,  as  a  free  gift  to  the  great  coun- 
try that  has  neglected  and  forgotten  him,  the  "  new  system  or 
Four  form  of  government"  which  passed,  through  the  four  "plans"  l 

mere™  offered  in  the  Federal  Convention  of  1787,  into  the  existing 
conduits.  Constitution  of  the  United  States.  Certainly  no  more  "  won- 
derful work  was  ever  struck  off  at  a  given  time  by  the  brain 
and  purpose  of  man."  The  outcome  of  that  work  was  a 
novel  and  unique  creation  operating  directly  on  the  people, 
and  not  upon  the  states  as  corporations.  The  state  gov- 
ernments are  not  subject  to  the  central  government.  The 
people  are  subject  to  both  governments.  The  new  creation 
is  in  no  respect  federal  in  its  operation,  although  it  is  in  some 
respects  federal  in  its  organization.  No  one  of  the  three 
basic  principles  constituting  the  great  invention  was  seriously 
questioned  in  the  Convention.  Its  mighty  and  immortal 

1  At  a  later  time  a  grave  controversy  arose  as  to  "the  singularly  minute 
coincidences  between  the  draft  of  a  federal  government  communicated  by  Mr. 
Charles  Pinckney  of  South  Carolina  to  Mr.  Adams,  Secretary  of  State,"  the 
Virginia  plan,  and  the  Constitution  as  finally  adopted.  Every  explanation 
was  given  of  "the  singularly  minute  coincidences,"  except  the  plain  and  obvious 
one,  —  all  four  plans  out  of  which  the  Constitution  arose  were  taken  from  a  com- 
mon source.  For  a  statement  of  the  controversy  in  question  see  Rives,  Life 
and  Times  of  Madison,  ii.  353-357. 


ENGLISH  LAW  IN  THE  UNITED  STATES  457 

task  involved  only  their  adaptation  to  very  difficult  and 
complex  political  conditions.  The  inventor  of  the  plan 
stands  to  the  members  of  the  Convention  as  an  architect 
stands  to  master  builders. 

As  an  evidence  of  the  highly  practical  temper  of  Pelatiah  A  depart- 
Webster  the  fact  should  be  mentioned  that,  having  been 
a  successful  merchant,  his  pet  hobby  seems  to  have  been 
to  create  a  department  of  commerce  in  close  touch 
with  Congress.  He  said:  "I  therefore  humbly  propose, 
if  the  merchants  in  the  several  States  are  disposed  to 
send  delegates  from  their  body,  to  meet  and  attend  the 
sitting  of  Congress,  that  they  shall  be  permitted  to  form  a 
chamber  of  commerce,  and  their  advice  to  Congress  be  demanded 
and  admitted  concerning  all  bills  before  Congress,  as  far  as  the 
same  may  affect  the  trade  of  the  States."  In  his  criticisms 
made  in  1791  of  the  work  of  the  Federal  Convention  he  said 
that  its  failure  to  accept  that  suggestion  was  a  great  mistake. 
The  very  recent  creation  of  a  department  of  commerce  and 
labor  has  at  last  effectuated  his  idea.  Only  through  the 
vista  of  receding  years  can  such  an  epoch-making  mind  be 
viewed  in  all  its  grandeur.  What  signifies  a  century  of 
neglect  passed  in  the  midst  of  the  "  momentous  consequences" 
his  mighty  work  has  wrought !  His  time  is  at  hand ;  his 
fame  is  as  safe  and  as  certain  as  the  immortality  of  thought 
and  the  unerring  justice  of  the  tribunal  of  history.  His  Webster's 
abiding  faith  in  the  justice  of  that  tribunal  he  clearly  ex- 
pressed  when  he  said :  "  But  if  any  of  these  questions  should 
in  future  time  become  objects  of  discussion,  neither  the  vast 
dignity  of  the  Convention,  nor  the  low  unnoticed  state  of  myself, 
will  be  at  all  considered  in  the  debates;  the  merits  of  the 
matter,  and  the  interests  connected  with  or  arising  out  of  it  will 
alone  dictate  the  decision."  The  humanly  impossible  and 
miraculous  theory  which  has  heretofore  serenely  assumed 
that  the  greatest  and  most  unique  of  all  political  inventions 


THE  SCIENCE  OF  JURISPRUDENCE 


No  inven- 
tion with- 
out an 
inventor. 


The  new 
national 
citizenship. 


Origin  of 
interstate 
citizenship. 


had  no  inventor,  cannot  survive  a  method  of  historical  in- 
vestigation that  undertakes  to  demonstrate  that  beneath 
every  shell  there  is  an  animal,  behind  every  document  there 
is  a  man.  The  eminent  French  critic  and  historian  Ch.  V. 
Langlais  has  said:  "History  is  studied  from  documents. 
Documents  are  the  traces  which  have  been  left  by  the  thoughts 
and  actions  of  men  of  former  times.  There  is  no  substitute 
for  documents:  no  documents,  no  history."  Strange  indeed 
it  is  that  the  most  important  document  connected  with  the 
constitutional  history  of  the  United  States  should  now  be 
presented  to  the  jurists  and  statesmen  of  the  world  as  if  it 
were  a  papyrus  from  Egypt  or  Herculaneum.  The  author  is 
grateful  for  the  good  fortune  that  has  enabled  him  to  unearth 
this  great  document,  and  to  place  it,  for  the  first  time,  in  its 
true  light.1 

4.  The  one  particular  in  which  the  first  confederation  rose 
above  the  older  Teutonic  Leagues,  after  which  it  was  patterned, 
was  embodied  in  the  new  principle  of  interstate  citizenship  it 
originated.  That  principle  infused  itself  neither  into  the 
constitution  of  the  old  German  Empire,  nor  of  Switzerland, 
nor  of  Holland.2  Section  one  of  Article  four  of  the  Articles 
of  Confederation  provided  that,  "The  better  to  secure  and 
perpetuate  mutual  friendship  and  intercourse  among  the 
people  of  the  different  states  in  this  Union,  the  free  inhabit- 
ants of  each  of  these  states,  paupers,  vagabonds,  and  fugi- 
tives from  justice  excepted,  shall  be  entitled  to  all  privileges 
and  immunities  of  free  citizens  in  the  several  states."  The 
substance  of  that  provision  was  reproduced  in  Section  two 
of  Article  four  of  the  present  Constitution,  which  provides 

1  In  order  to  make  it  more  accessible  it  has  been  printed  as  an  Appendix. 
The  Senate  of  the  United  States  has  just  printed,  in  a  very  handsome  form, 
1000  copies  for  the  use  of  its  members,  while  a  Committee  of  the  House  of 
Representatives  has  recommended  the  printing  of  2000  copies  for  the  use  of 
its  members. 

2  Bancroft,  History  of  the  Constitution,  i.  118. 


ENGLISH  LAW  IN  THE  UNITED  STATES  459 

that,  "The  citizens  of  each  state  shall  be  entitled  to  all  privi- 
leges and  immunities  of  citizens  in  the  several  states."  Be- 
yond that  point  the  framers  of  the  more  perfect  union  were 
not  prepared  to  go.  They  did  not  attempt  to  do  more  than 
establish  an  interstate  citizenship  to  which  they  imparted 
the  qualities  of  uniformity  and  equality  by  denying  to  every  The  form  it 

.  .  .  .   .  assumed  in 

state  the  right  to  discriminate  in  favor  of  its  own  citizens  as  constitution 
against  those  of  any  other  state.1    In  the  absence  of  any 
positive  assertion  by  federal  authority  of  any  such  thing  as 
a  primary  citizenship  of  the  United  States  as  such,  there  was 
really  no  substantial  basis  upon  which  to  maintain  its  exist- 
ence.   If  any  such  thing  as  a  federal  or  national  citizenship 
existed  at  all,  it  was  nothing  more  than  a  secondary  and 
dependent  relation.    The  better  view  is  that  prior  to  the 
adoption  of  the  Fourteenth  Amendment  a  man  was  a  citizen  No  primary 
of  the  United  States  only  by  virtue  of  his  citizenship  in  one  citizenship 
of  the  states  composing  the  Union.     In  the  famous  case  of  Fourteenth 
Dred  Scott 2  it  was  held  that  no  state  had  the  power  to  raise  Amend- 

ment. 

a  man  of  African  descent  to  the  rank  of  a  citizen  so  as  to 
make  him  a  citizen  of  a  state  or  of  the  United  States.  The 
Constitution  of  the  United  States  never  reached  its  logical 
completion  until  after  the  adoption  of  the  Fourteenth  Amend- 
ment. As  heretofore  pointed  out,  the  new  principle  which 
became  the  basis  of  the  more  perfect  union,  and  which  im- 
parted to  it  its  distinctive  character,  was  that  the  sum  of 
federal  power  vested  in  the  new  constitution  should  operate 
not  upon  states  in  their  corporate  capacity,  but  directly  upon 
individuals.  If  that  principle  had  been  carried,  at  the  time 
of  its  adoption,  to  its  logical  conclusion,  it  would  then  have 
been  settled  that  the  individuals  upon  whom  the  new  gov- 

1  "That  the  Constitution  itself  has  defined  citizenship  of  the  United  States 
by  declaring  what  persons,  born  within  the  several  states,  shall  or  shall  not  be 
citizens  of  the  United  States  will  not  be  pretended.  It  contains  no  such 
declaration."  Mr.  Justice  Curtis  in  Dred  Scott  v.  Sandford,  19  How.  575. 

*  Dred  Scott  v.  Sandford,  19  How.  393. 


460 


THE  SCIENCE  OF  JURISPRUDENCE 


First 
therein. 


Journal  of 


ernment  was  to  act  should  be  primarily  its  own  citizens.  No 
greater  solecism  can  be  imagined  than  a  federal  government 
acting  directly  on  citizens,  and  yet  a  government  without 
citizens. 

While  there  can  be  no  doubt  that  the  leading  motive  that 
led  to  the  adoption  of  the  Fourteenth  Amendment  was  to 
reverse  the  results  of  the  Dred  Scott  Case,  and  to  secure  the 
right  of  citizenship  to  the  African  race,  the  fact  remains  that 
the  first  section  of  the  amendment,  without  making  any 
direct  reference  to  the  question  of  race  at  all,  contains  the  first 
positive  definition  ever  given  to  citizenship  of  the  United 
States  as  a  primary  and  substantive  thing,  independent  of 
state  citizenship.  That  section  provides  that,  "All  persons 
born  or  naturalized  in  the  United  States,  and  subject  to  the 
jurisdiction  thereof,  are  citizens  of  the  United  States  and  of 
the  state  wherein  they  reside.  No  state  shall  make  or  en- 
force any  law  which  shall  abridge  the  privileges  or  immuni- 
ties of  citizens  of  the  United  States;  nor  shall  any  state 
deprive  any  person  of  life,  liberty,  or  property,  without  due 
process  of  law;  nor  deny  to  any  person  within  its  jurisdic- 
tion the  equal  protection  of  the  laws."  Roscoe  Conkling, 
a  leading  member  of  the  Reconstruction  Committee  that 
framed  the  amendment,  produced  for  the  first  time  the  jour- 
nal  °f  the  committee  on  the  argument  of  the  San  Mateo 
County  Case,  December  19,  1882.  In  his  argument  he  said: 
"At  the  time  the  Fourteenth  Amendment  was  ratified,  as  the 
records  of  the  two  Houses  will  show,  individuals  and  joint 
stock  companies  were  appealing  for  congressional  and  ad- 
ministrative protection  against  invidious  and  discriminating 
state  and  local  taxes."  l  Thus  it  appears  that,  at  the  critical 
moment,  citizens  of  the  state  of  New  York,  claiming  federal 
protection  for  their  property  interests  against  hostile  state 


1  See  Guthrie,  The  Fourteenth  Amendment  to  the  Constitution  of  the  United 
States,  pp.  24-25. 


ENGLISH  LAW  IN  THE  UNITED  STATES  461 

legislation,  joined  with  those  who  were  seeking  to  protect  the 
freshly  emancipated  from  the  same  danger.  Prior  to  that 
time  the  Constitution  guaranteed  no  adequate  protection  to  Lack  of 
life,  liberty,  or  property  as  against  such  legislation.  Except 
in  the  case  of  bills  of  attainder  or  laws  impairing  the  obliga- 
tion  of  contracts,  the  arbitrary  exercise  by  local  legislatures, 
courts,  or  executive  officers  of  powers  affecting  life,  liberty,  or 
property  could  not  be  checked  or  redressed  by  the  federal 
judiciary.1  The  prohibition  against  ex  post  facto  laws  referred 
to  criminal  cases  only.2  The  only  provisions  of  the  original 
constitution  protecting  fundamental  rights  in  the  states  were 
those  entitling  the  citizens  of  each  state  to  all  the  privileges 
and  immunities  of  citizens  in  the  several  states,  and  guaran- 
teeing a  republican  form  of  government  in  every  state.3  The 
provisions  of  the  Bill  of  Rights  embodied  in  the  first  ten 
amendments  restrain  the  national  government  only,  and  were  Restraints 
not  intended  to  apply  to  the  states.4  To  remedy  that  con- 
dition  of  things,  it  became  necessary  to  nationalize  the  entire 
system  by  creating  a  national  citizenship  as  the  primary 
citizenship.  By  the  "due  process  of  law"  limitation,  the 
new  national  citizenship  was  placed  under  the  direct  pro-  "Due 
tection  of  that  chapter  of  Magna  Carta  which  provides  that 
"  no  freeman  shall  be  taken  or  impressed,  or  disseized,  or  out- 
lawed,  or  exiled,  or  anywise  destroyed;  nor  will  we  go  upon 
him  nor  send  upon  him,  but  by  the  lawful  judgment  of  his 
peers  or  by  the  law  of  the  land."  In  the  course  of  time  the 
sacred  text  of  that  fundamental  statute  came  to  be  under- 
stood in  England  as  the  living  guarantee  of  all  the  rights 
which  good  government  should  require  and  enforce,  a  con- 

1  Cf.  Mr.  Justice  Field's  concurring  opinion  in  Bartemeyer  v.  Iowa,  18  Wall. 
129,  140. 

8  Calder  v.  Bull,  3  Dall.  386,  390,  396,  399 ;  in  re  Sawyer,  124  U.S.  200,  219. 
As  to  what  constitutes  an  ex  post  facto  law,  see  Thompson  v.  Utah,  170  U.S.  343. 

»  Forsyth  v.  Hammond,  166  U.S.  506,  519. 

4  Barren  v.  Baltimore,  7  Pet.  243, 247 ;  McElvaine  v.  Brush,  142  U.S.  155,  158. 


462 


THE  SCIENCE  OF  JURISPRUDENCE 


As  inter- 
preted by 
Coke  and 
his  fol- 
lowers, 


and  by 
Supreme 
Court  of 
United 
States. 


Equal 
protection 
of  the  laws. 


ception  that  naturally  varied  from  age  to  age.  That  con- 
ception, in  the  liberal  form  given  it  by  Coke  and  his  followers, 
during  the  constitutional  struggles  with  the  Stuarts,1  was 
transplanted  by  the  founders  of  the  English  colonies  on  our 
Atlantic  seaboard,  where  it  became  the  original  basis  of 
American  constitutional  law.  In  construing  the  first  sec- 
tion of  the  Fourteenth  Amendment  the  Supreme  Court  has 
said:  "The  prohibition  against  depriving  the  citizen  or  sub- 
ject of  his  life,  liberty,  or  property,  without  due  process  of 
law,  is  not  new  in  the  constitutional  history  of  the  English 
race.  It  is  not  new  in  the  constitutional  history  of  this 
country,  and  it  was  not  new  in  the  Constitution  of  the  United 
States  when  it  became  a  part  of  the  XlVth  Amendment,  in 
the  year  1866.  The  equivalent  of  the  phrase  '  due  process  of 
law,'  according  to  Lord  Coke,  is  found  in  the  words  'law  of 
the  land,'  in  the  Great  Charter,  in  connection  with  the  writ  of 
habeas  corpus,  the  trial  by  jury,  and  other  guarantees  of  the 
rights  of  the  subject  against  the  oppression  of  the  crown."  2 
And  yet  broad  and  comprehensive  as  the  ancient  formula 
contained  in  the  Great  Charter  was,  the  framers  of  the  Four- 
teenth Amendment  found  it  too  narrow  for  their  purposes. 
They  felt  obliged  to  supplement  it  by  a  new  American  inven- 
tion which  provides,  "  Nor  shall  any  state  .  .  .  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of  the  laws."  * 
Thus  it  was  that  new  as  well  as  ancient  elements  entered  into 
this  epoch-making  section  which  has  shifted  the  center  of 
gravity  of  the  Constitution  from  the  individual  states  to  the 
nation  as  a  whole.  In  the  corporate  person  of  the  nation  it 
has  vested  the  self-executing  power  to  preserve  itself  in  every 
part,  and  to  protect  its  citizens  from  all  possible  oppressions 
arising  out  of  the  unjust  or  unequal  application  of  state  laws 
or  authority. 

1  Cf .  McGehee,  Due  Process  of  Law,  pp.  3-7. 
•  Davidson  v.  New  Orleans,  96  U.S.  97. 
»  Yick  Wo  v.  Hopkins,  118  U.S.  356,  369. 


ENGLISH  LAW  IN  THE  UNITED  STATES  463 

In  the  famous  case  of  the  United  States  v.  Wong  Kim  Ark,1  children 
the  question  arose  whether  a  child  born  in  the  United  States, 
of  parents  of  Chinese  descent,  who  at  the  time  of  his  birth 
were  subjects  of  the  emperor  of  China,  but  had  a  permanent  parents 
domicile  in  the  United  States,  and  were  there  carrying  on 
business,  and  were  not  employed  in  any  diplomatic  or  offi- 
cial capacity  under  the  emperor  of  China,  became  at  the 
time  of  his  birth  a  citizen  of  the  United  States  under  Section 
one  of  the  Fourteenth  Amendment.  The  Court  was  thus 
called  upon  to  answer  this  vital  question:  Was  this  child  of 
Chinese  parents,  at  the  time  of  his  birth,  "subject  to  the 
jurisdiction  of  the  United  States  "  ?  Its  answer  was  that, 
"'The  interpretation  of  the  Constitution  of  the  United  Constitu 
States  is  necessarily  influenced  by  the  fact  that  its  provisions 
are  framed  in  the  language  of  the  English  common  law,  and 
are  to  be  read  in  the  light  of  its  history.'  124  U.S.  478.  II. 
The  fundamental  principle  of  the  common  law  with  regard 
to  English  nationality  was  birth  within  the  allegiance,  also 
called  'ligealty,'  'obedience/  'faith,'  or  'power,'  of  the  king. 
The  principle  embraced  all  persons  born  within  the  king's 
allegiance  and  subject  to  his  protection.  .  .  .  This  funda- 
mental principle,  with  these  qualifications  or  explanations  of 
it,  was  clearly,  though  quaintly,  stated  in  the  leading  case, 
known  as  Calvin's  Case,  or  the  Case  of  the  Postnati,  decided 
in  1608."  2  Thus  it  appears  that  an  English  rule,  which  was 
the  outcome  of  the  connection  in  feudalism  between  the  in-  Feudal 
dividual  and  the  soil  on  which  he  lived,  a  rule  embodying 
the  allegiance  due  from  liegemen  to  their  liege  lord,  was  so 
interpolated  into  a  vital  part  of  the  Constitution  of  the  United 
States  as  to  confer  at  least  inchoate  citizenship  upon  all 
children  born  to  foreign  parents  permanently  domiciled  at 
the  time  upon  American  soil,  despite  the  fact  that  such 
parents  are  still  the  subjects  of  a  foreign  state.  So  com- 

1  169  U.S.  649.  a  2  Howell's  St.  Tr.  559,  613-617,  639,  659,  679. 


464  THE  SCIENCE  OF  JURISPRUDENCE 

pletely  have  the  basic  principles  of  English  law,  including  its 
"Terms  "terms  of  art,"  *  been  incorporated  into  our  entire  political 
and  legal  fabric,  state  and  federal,  it  may  be  said  that  while 
the  grammar  of  our  constitutional  language  has  departed  to 
a  marked  extent  from  the  ancient  original,  its  words,  with 
their  ancient  signification,  still  abide  with  their  force  unim- 
paired. 

1  During  the  trial  of  Aaron  Burr,  when  Chief  Justice  Marshall  was  called  upon 
to  define  the  phrase  "levying  war,"  he  said  :  "It  is  a  technical  term.  It  is  used 
in  a  very  old  statute  of  that  country,  whose  language  is  our  language,  and 
whose  laws  form  the  substratum  of  our  laws.  It  is  scarcely  conceivable  that 
the  term  was  not  employed  by  the  framers  of  our  Constitution  in  the  sense 
which  had  been  affixed  to  it  by  those  from  whom  we  borrowed  it.  So  far  as 
the  meaning  of  any  terms,  particularly  terms  of  art,  is  completely  ascertained, 
those  by  whom  they  are  employed  must  be  considered  as  employing  them  in 
that  ascertained  meaning  unless  the  contrary  be  proved  by  the  context." 
.Burr's  Trial,  ii.  401,  402.  See  to  the  same  effect  Murray  v.  The  Hoboken  Land 
Co.,  18  How.  272;  Smith  v.  Alabama,  124  U.S.  465. 


CHAPTER   VI 


ROMAN  AND   ENGLISH  LAW   COMBINED 

1.  In  the  chapter  entitled  "External  History  of  Roman  Survival  of 
Law,"  an  effort  was  made  to  emphasize  the  fact  that  the  private  and 


public  law  of  Rome,  constitutional  and  administrative,  was 
rejected  because  inapplicable  to  the  new  conditions  that 
arose  when  the  state  system  of  modern  Europe,  in  which  the 
state  as  the  nation  is  the  unit,  swept  away  and  superseded 
the  ancient  state  system  in  which  the  city-commonwealth 
had  been  the  unit.  What  did  survive  was  the  Roman  pri- 
vate law  of  family  and  property,  of  contract  and  tort,  based 
on  principles  of  natural  equity  and  universal  reason  which 
have  not  lost  their  force  with  the  altered  circumstances  of 
more  recent  times.  In  the  chapter  entitled  "  External  His- 
tory of  English  Law,"  an  effort  was  made  to  emphasize  the 
fact  that  the  public  law  of  England,  after  a  thousand  years 
of  insular  development,  is  extending  itself  as  the  accepted 
political  model,  after  which  have  been  fashioned  the  many 
systems  of  popular  government  now  existing  throughout  the 
world.  Since  the  beginning  of  the  French  Revolution  nearly  Adoption 
all  the  states  of  Continental  Europe  have  organized  national 
assemblies  after  the  model  of  the  English  Parliament  in  a 
spirit  of  conscious  imitation.  Through  an  unconscious 
process  of  natural  reproduction  the  English  political  model 
has  reappeared  in  North  American  constitutions,  state  and 
federal,  whence  it  has  passed,  in  its  American  form,  into 
the  constitutions  of  Mexico,  Central  and  South  America,  with 
such  modifications  as  have  been  suggested  by  local  circum- 

2H  465 


466 


THE  SCIENCE  OF  JURISPRUDENCE 


in  areas 
preoccupied 
by  Roman 
private  law. 


Typical 
law  system 
of  the 
future. 


Reproduc- 
tion of 
Spanish 
law  in 

America. 


Council  of 
the  Indies. 


stances.  By  that  extension  of  English  public  law,  within 
less  than  a  century,  over  the  vast  areas  in  Continental  Europe 
and  in  Latin  America  preoccupied  by  Roman  private  law  a 
startling  result  has  been  brought  about.  A  new  type  of  state 
has  thus  arisen  whose  outer  shell,  or  constitutional  law,  is 
English,  and  whose  inner  code  of  private  law  is  Roman.  A 
typical  illustration  is  to  be  found  in  the  present  constitution 
of  the  French  Republic,  whose  political  outer  shell  is  more 
purely  English  than  that  of  any  American  state,  while  its 
interior  code  of  private  law  is  Roman.  Almost  as  striking 
an  illustration  is  to  be  found  in  the  blended  law  systems  of 
the  state  of  Louisiana.  Upon  such  data  was  based  the 
statement,  made  in  the  preface,  that  everything  now  points 
to  the  conclusion  that  out  of  a  combination  of  English  public 
law  as  the  outer  shell,  with  Roman  private  law  as  the  in- 
terior code,  is  to  arise  the  typical  state  law  system  of  the 
future.  A  most  inviting  field  for  inquiry  and  speculation 
upon  this  all-important  subject  is  to  be  found  within  the 
limits  of  the  republics  established  in  Mexico  and  Central  and 
South  America,  to  whose  systems  of  law,  public  and  private, 
this  chapter  is  devoted. 

2.  The  sovereign  was  regarded  from  the  outset  as  the 
fountain  of  all  authority  throughout  Spanish  America,  and 
an  almost  regal  and  absolute  power  was  vested  by  special 
grants  from  the  king  in  the  persons  sent  to  found  the  first 
governments  in  the  New  World.  The  Casa  de  la  Contratacion 
or  India  House  at  Seville,1  established  by  an  ordinance  of 
1503,  with  authority  to  grant  licenses,  to  dispatch  fleets,  and 
to  dispose  of  the  results  of  trade  and  exploration,  became 
subordinate  to  the  Council  of  the  Indies,  created  by  Ferdi- 
nand in  1511  and  fully  organized  by  Charles  V.  in  1524. 
The  royal  laws  gave  to  that  Council  supreme  jurisdiction  over 


1  In  order  to  enable  it  to  superintend  more  conveniently  the  shipping  to 
America,  the  Casa  de  la  Contratacion  was  transferred  to  Cadiz  in  1717. 


ROMAN  AND  ENGLISH  LAW  COMBINED  467 

all  the  Western  Indies  pertaining  to  the  Spanish  crown  which 
had  been  discovered  at  that  period,  or  which  might  thereafter 
be  discovered,  —  such  jurisdiction  extending  over  all  their 
interests  and  affairs,  with  the  power  to  make,  with  the  royal 
assent,  all  laws  and  ordinances  necessary  for  the  welfare  of 
the  provinces.  The  Council  of  the  Indies,  which  consisted 
of  a  president,  who  was  the  king,  four  secretaries,  and  twenty- 
two  councilors,  appointed  all  the  officers  employed  in  Amer- 
ica in  compliance  with  the  nomination  of  the  crown,  and 
every  one  was  responsible  to  it  for  his  conduct.  Prior  to  the  Provincial 
revolution  the  Spanish  possessions  in  America  formed  nine  zation. 
distinct  governments,  formed  on  the  same  plan  and  inde- 
pendent of  each  other.1  Of  these  four  were  viceroyalties  — 
Mexico,  Peru,  La  Plata,  and  New  Granada  —  and  five  cap- 
tain-generalships —  Yucatan,  Guatemala,  Chili,  Venezuela, 
and  the  island  of  Cuba.  The  government  of  each  was  vested 
in  a  viceroy  or  captain  general,  who  was  held  to  represent  the 
king.  The  principal  courts  of  justice  were  the  audiencias  Courts  of 
reales  or  royal  audiences,  composed,  in  addition  to  the  presi- 
dent, who  was  the  viceroy  or  captain  general,  of  a  regent, 
three  judges,  two  fiscales  or  attorneys,  a  reporter,  and  anal- 
quazil  or  constable.  After  the  royal  audiences  came  the 
cabildos,  whose  members,  consisting  of  regidores  and  other 
persons  appointed  by  the  king,  and  of  two  alcaldes  annually 
elected  by  the  regidores  from  among  the  people,  constituted 
a  municipal  body  in  almost  every  town  or  village  of  impor- 
tance. All  men  were  not  equal,  however,  before  these  tri- 
bunals, whose  jurisdictions  were  narrowed  by  a  system  of 
fueros  or  privileges  of  corporate  bodies  and  of  the  professions ;  privileges 
of  the  clergy,  called  public  or  common;  and  of  the  monks, 
canons,  inquisitions,  colleges,  and  universities.  The  basis  of 

1  The  title  of  the  Spanish  crown  to  the  American  colonies  was  supposed  to 
depend  not  so  much  on  discovery  and  possession  as  on  the  bull  of  Pope  Alex- 
ander VI.,  dividing  the  American  continent  between  the  kings  of  Spain  and 
Portugal.  Cf.  Solorzano  (Politica  Indiana,  vol.  i.,  chs.  10  and  11). 


468 


THE  SCIENCE  OF  JURISPRUDENCE 


Siete 
Partidaa 
the  basis. 


Rccopttacion 
de  Leyes  de 
los  Reynos 
de  las 

India*. 


Supple- 
mented by 
laws  of 
Castile. 


the  entire  fabric  was  Spanish  law,  in  the  form  that  law  had 
assumed  after  its  codification  in  the  Siete  Partidas  which  be- 
came fundamental  in  the  colonies  as  in  the  mother  country.1 
Upon  that  general  basis  law  was  administered,  subject  to 
such  local  regulations  and  decrees  as  were  promulgated  by 
the  Council  of  the  Indies,  whose  bungling  and  often  corrupt 
legislation  soon  filled  its  records  with  masses  of  contradictory 
and  useless  laws.  In  order  to  improve  that  condition  of 
things  the  various  laws  enacted  in  Spain  for  the  government 
of  the  Indies,  and  promulgated  at  different  times,  in  the  form 
of  cedulas,  decretos,  resolutiones,  ordenamientos,  reglamentos, 
pragmdticas,  and  the  like  were  collected  and  digested  by  the 
order  of  Philip  IV.  and  published  in  1661  as  the  Recopiladdn 
de  Leyes  de  los  Reynos  de  las  Indias.  That  compilation,  a 
better  digested  edition  of  which  was  published  by  Charles 
II.  in  1681,  is  regarded  as  the  only  authentic  collection  of 
the  decrees  and  ordinances  governing  Spanish  America  prior 
to  the  year  1680.  As  it  was  designed  only  to  regulate  the 
political,  ecclesiastic,  and  fiscal  administration  of  the  Spanish 
possessions  in  the  New  World,  it  did  not  pretend  to  be  a  com- 
plete code.  As  its  various  enactments  do  not  contain  provi- 
sions relating  to  the  civil  law,  it  is  not  strange  that  laws  1 
and  2,  title  1  of  book  2,  should  provide  that  in  cases  where 
the  Recopiladon  de  Indias  does  not  apply,  the  laws  of  Castile 
must  be  observed.2  Thus  the  civil  law  of  Spain  became  the 
basis  of  private  law  in  Spanish  America;  and,  as  the  legisla- 
tion of  the  mother  country  was  often  inapplicable  to  colonial 
conditions,  Philip  IV.  decreed 3  that  no  law  enacted  in  Spain 

1  "The  Partidas  are  still  worthy  of  careful  study,  since  they  are  fundamental 
in  the  law  of  Spain  and  her  colonies."  Howe,  Studies  in  the  Civil  Law,  2d  ed., 
p.  142. 

a  After  declaring  the  effect  of  the  Recopilacidn  de  Indias,  Law  1  provides : 
"y  en  lo  que  no  estuviere  decidido  por  las  leyes  de  esta  Recopilaci6n  para  las 
decisiones  de  las  causas  y  su  determinacion,  se  guarden  les  leyes  de  la  Recopi- 
lacidn y  Partidas  de  estos  Reynos  de  Castilla,  conforme  a  la  ley  siguiente. " 

8  Recopilacidn  de  Indias,  1,  40,  t.  1,  b.  2. 


ROMAN  AND  ENGLISH  LAW  COMBINED  469 

should  be  obligatory  in  America  unless  accompanied  by  a 
cedula  to  that  effect  emanating  from  the  Council  of  the 
Indies.  Thus  it  may  be  stated,  as  a  general  rule,  that  when  a 
case  in  the  colonies  did  not  fall  within  the  provisions  of  the 
Recopilaci&n  de  Indias,  recourse  was  to  be  had  to  "las  leyes 
de  la  Recopilatitin  y  Partidas  de  estos  Reynos  de  Castilla." 

3.  Reference  should  here  be  made  to  the  vast  territorial  Repro- 
area,  upward  of  3,288,000  English  square  miles  (not  far  short  Portuguese 
of  the  extent  of  Europe),  occupied  by  Brazil,  whose  civil  law  g^^J 
was  drawn  from  Portugal.     When  the  prince  regent,  after- 
ward Dom  Jo2o  VI.,  decided  to  take  refuge  in  Brazil,  where  he 
arrived  in  1808,  for  the  first  time  a  colony  became  the  seat  of  gov- 
ernment of  its  own  mother  country.     In  1815  it  was  declared 
an  independent  kingdom  subject  to  the  crown  of  Portugal 
but  entitled  to  its  separate  administration  and  its  own  laws. 
The  revolutionary  spirit  pervading  the  Spanish  colonies  now 
found  its  way  into  Brazil,  and  produced  an  insurrection  at 
Pernambuco  in  1817,  which  was  followed  by  a  new  impulse 
drawn  from  the  constitutional  systems  suddenly  introduced 
into  Spain  and  Portugal  in  1820.     Before  the  promise  that 
the  constitution  of  Portugal  should  be  extended  to  Brazil 
could  be  carried  out,  the  old  king  sailed  for  Europe,  leaving 
his  son  Dom  Pedro  to  rule  in  his  absence.     In  1822  he  was  Dom  Pedro 
proclaimed  emperor,  and  had  his  own  title  and  the  inde-  EiTs^"^ 
pendence  of  Brazil  acknowledged  by  his  father  three  years 
later.    A  representative  system  was  at  the  same  time  intro- 
duced.   As  the  laws  of  the  Portugals  extended  to  all  her 
dominions,  the  civil  law  of  Brazil  was  drawn  from  that  source. 
The  Portuguese  pride  themselves  on  having  had  the  first 
codification  in  modern  Europe,  as  they  claim  to  have  had  the  Portuguese 
most  ancient  of  parliaments,  the  Cortes  of  Lamego  in  the  fi^codi- 
heart  of  the  Middle  Ages  (1144).    That  first  codification  was  ficationin 

modern 

the  Ordenagoes  (Ordinances)  Affonsinas,  or  of  King  Affonso  Europe. 
V.,  upon  which,  under  Dom  John  the  First  and  Dom  Duarte, 


470 


THE  SCIENCE  OF  JURISPRUDENCE 


The 

"  Philippine 

Code." 


Portuguese 
law 
funda- 
mentally 
Roman. 


worked  first  the  Corregidor  JoSo  Mendes,  and  after  him  Dr. 
Ruy  Fernandes.  That  first  body  of  laws  was  transformed, 
under  Dom  Manoel,  into  the  Ordenagoes  Manoelinas,  published 
in  1514;  then,  in  1603,  under  the  Spanish  domination,  into 
the  Ordena$oes  Philippinas,  or  of  Philip  (second  of  Portugal 
and  third  of  Spain).  The  "Philippine  Code"  was,  however, 
very  incomplete  and  deficient,  and  had  to  be  supplemented 
by  very  many  particular  laws  of  all  dates,  called  extravagantes. 
Even  with  such  additions  it  did  not  cover  the  whole  field  of 
juridical  relations  enforced  by  immemorial  custom  and  tra- 
dition, and  a  law  of  the  18th  of  August,  1769,  called  da  boa 
razao,  left  to  the  courts  practically  the  faculty  of  creating  the 
law,  according  to  their  own  judgment,  as  it  recognized  as 
"subsidiary  legislation"  to  the  Ordena$oes  and  to  the  other 
laws  of  the  country,  the  "styles  and  practices"  of  Portuguese 
jurisprudence,  the  Roman  law,  and  the  laws  of  the  civilized 
nations,  bearing  on  the  contested  points. 

The  Portuguese  law  is  fundamentally  Roman.  As  the 
country  was  civilized  by  the  Romans,  it  retained  the  impress 
of  that  civilization.  The  chief  inspiration  of  the  old  Portu- 
guese jurists  was  therefore  drawn  from  the  Institutes  and  the 
Pandects.  That  influence  remained  undisturbed  for  centuries, 
and  its  greatest  and  last  representative  was  the  celebrated 
Dr.  Paschoal  Jos6  de  Mello  Freire,  to  whom  Queen  Mary  the 
First  committed,  in  1783,  the  revision  of  books  2d  and  5th  of 
the  Ordena$oes  do.Reino  (Ordinances  of  the  Kingdom).  As 
his  work,  Institutiones  Juris  Civilis  Lusitani,  embodied  the 
entire  system  of  the  Portuguese  jurisprudence  of  his  time, 
he  deserves  the  name  of  its  creator.  His  authority  was  almost 
absolute  from  his  time  until  beyond  the  middle  of  the  nine- 
teenth century.  But  slowly  the  Roman  influence  began  to  lose 
the  exclusive  power  it  naturally  exercised  when  the  Portuguese 
jurists  wrote  in  Latin.  Under  the  law  of  1769,  which  made  the 
legislation  of  the  civilized  countries,  as  well  as  the  Roman 


ROMAN  AND  ENGLISH  LAW  COMBINED  471 

law,  subsidiary,  in  cases  of  doubt  or  omission,  to  the  national  Portuguese 
laws  and  practice,  the  French  commentators  of   the   Code  BUpIereeded 


Napoleon  began  to  supersede  the  Portuguese  Romanists  as 
the  study  of  French  superseded  that  of  Latin.    The  evolu-  tatora. 
tion  of  jurisprudence  was  the  same  for  a  long  time  both  in 
Portugal  and  in  Brazil.     The  Portuguese  laws  in  force  at  the 
time  of  the  independence  of  Brazil  were  adopted  as  Brazilian 
law  by  an  act  of  the  Constituent  Assembly  of  the  20th  of 
October,   1823.    While  the   old    Ordenagoes  Philippinas    of  Ordenaqoes 
1603  gave  place  in  Portugal,  in  the  second  part  of  the  nine-  of  IGOS™ 
teenth  century,  to  a  Civil  Code,  the  work  of  Viscount  de  t^^£w 
Seabra,  they  remain  until  now,  with  changes  made  here  and  in  Brazil. 
there  by  special  laws  and  by  enactments  in  harmony  with 
the  liberal  institutions  adopted  by  the  country  since  1822,  the 
chief  structure  of  civil  law  in  Brazil.    The  Constitution  of  1824 
provided  for  the  making  of  a  Civil  and  a  Penal  Code.    The 
Penal  Code  appeared  in  1830,  and  the  Commercial  Code  in  Penal 
1850,  but  the  Civil  Code  has  not  yet  been  promulgated.    In 


1855  was  committed  to  a  Brazilian  jurist  of  the  highest 
capacity,  Senhor  Teixeira  de  Freitas,  the  task  of  digesting  the  185°- 
then  existing  laws  of  the  country,  and  his  work  yet  stands 
in  lieu  of  the  expected  Code,  although  without  the  binding 
power  of  an  act  of  the  legislature.  Its  title  is  Consolida$ao 
das  Leis  Civis.  He  was  afterwards  intrusted  with  the  prepa- 
ration of  the  Civil  Code.  He  drafted  a  full  preliminary  sketch 
of  it,  Esbo^o  de  Codigo  Civil,  from  which  much  was  taken  for  Esbofo  <fc 
the  Argentine  Civil  Code,  —  Dr.  Velez  Sarsfield,  its  author, 
acknowledging  his  obligation  to  the  great  Brazilian  jurist. 
But  a  few  years  after  Teixeira  de  Freitas  repudiated  his 
Esboco,  and  refused  to  continue  the  work  under  the  plan  of 

Senator 

the  contract.    The  consequence  was  that  Senator  Nabuco,1  Nabuco. 

1  From  his  son,  the  famous  diplomatist,  jurist,  and  scholar,  Mr.  Joaquim 
Nabuco,  now  Brazilian  ambassador  at  Washington,  where  he  is  beloved  by  all, 
the  author  has  drawn  the  greater  part  of  the  data  upon  which  is  based  the  above 
sketch  of  Portuguese  and  Brazilian  law. 


472 


THE  SCIENCE  OF  JURISPRUDENCE 


German 
influence  in 
Brazilian 
law 
schools. 


Constant 
and  the 
Poder 
Moderador. 


Severance 

of  Spanish 

colonies 

from 

mother 

state. 


another  great  jurist  and  chief  of  the  Liberal  party,  under  the 
Empire,  received  in  1872  the  same  commission,  but  died 
without  being  able  to  carry  it  out.  Through  diverse  causes 
no  one  of  the  projects  of  a  Code  by  other  jurists,  Felicio  dos 
Santos,  Coelho  Rodrigues,  and  Clovis  Bevilacqua,  was  adopted. 
The  project  of  Senhor  Bevilacqua  may  yet,  however,  become 
law.  In  Brazil  as  in  Portugal  the  French  influence  suc- 
ceeded that  of  the  Roman  Digest,  and  of  late  the  influence 
of  the  German  jurists  has  been  considerable  in  the  two  prin- 
cipal law  schools  of  Brazil,  —  those  of  Pernambuco  and  of 
Sao  Paulo.  Since  the  foundation  of  the  republic  in  1889, 
under  the  community  of  political  institutions  and  of  political 
jurisprudence,  the  civil  law  has  been  subordinated  to  the 
spirit  of  the  political  institutions.  In  Brazil  the  influence  of 
the  United  States  is  already  noticeable.  The  French  influence 
upon  her  political  system  was  manifest  in  the  monarchical 
Constitution  of  1824,  as  in  it  appeared  a  new  political  power, 
committed  exclusively  to  the  emperor,  to  control  or  to  keep 
within  their  own  spheres  the  three  other  powers, —  executive, 
legislative,  and  judicial.  That  power,  called  the  moderat- 
ing power,  Poder  Moderador,  was  a  conception  of  Benjamin 
Constant,  the  great  French  publiciste  of  the  epoch.  The 
North  American  influence  was  accentuated  in  the  political 
law  of  Brazil  as  early  as  in  1834,  when  the  act  reforming  the 
constitution,  called  Acto  Additional,  converted  the  empire 
of  Brazil,  under  certain  limitations,  into  a  federal  nation. 
The  present  Constitution  of  the  24th  of  February,  1891,  is  in 
its  political  structure  the  same  as  that  of  its  prototype. 

4.  The  United  States  of  North  America,  colonized  a  century 
later  than  Spanish  America,  learned  to  take  care  of  them- 
selves so  far  in  advance  of  their  southern  neighbors  as  to  be 
able  to  establish  systems  of  governments,  state  and  federal, 
as  standards  for  their  imitation.  Spain's  colonial  system, 
more  paternal  than  that  of  England,  retained  in  her  hands 


ROMAN  AND  ENGLISH  LAW  COMBINED  473 

the  whole  trade  of  the  colonies,  and  guarded  her  monopoly 
with  the  severest  penalties.    The  colonists,  who  were  com-  Oppressions 
pelled  to  root  up  their  vines  and  olives,  were  not  allowed  system!" 
to  raise    or    manufacture   any  article   the   mother  country 
could  supply.    It  was  a  vital  part  of  that  policy  to  bestow 
upon  natives  of  the  peninsula  all  offices,  from  the  highest 
to  the  lowest,  in  order  to  create  an  official  and  privileged 
caste,  distinct   from  the   people   in    feelings  and   interests. 
And  yet,  despite  the  thraldom  incident  to  such  an  organized 
system   of   oppression,    the    loyalty    of    Spanish  America 
blazed    forth,   and    poured    large    contributions  of   money  Loyalty  of 
into  the  hands  of  Ferdinand's  adherents,  when  the  regency 
established  in  Spain  presented  the  semblance  of  a  patriot 
government.     Not    until    the    only  government    to    which 
the   colonists  recognized   allegiance   had   fallen    into  abey- 
ance, did   they  resolve  to  declare  themselves  independent. 
Through   spontaneous    popular   efforts    "juntas  of   govern-  Revoiu- 
ment"  were  formed  at  Caracas  in  April,  1809,  at  La  Paz  move? 
in  Upper  Peru  in  July,  at  Quito  in  August,  at  Santa  Fe  and  at  mente* 
Buenos  Aires    in  May,  1810,  and   at  Santiago    in   Chili    in 
September  of  the  same  year.    In  Mexico  the  revolutionary 
movement  began  at  Dolores  in  1810  and  soon  wore  a  more 
prosperous  appearance.     In  Guatemala,  the  last  portion  of 
America  to  throw  off  the  Spanish  yoke,  the  persons  in  office 
assembled  in  1821  and  formed  a  junta.     Finally  an  elective  „ 

Independ- 

assembly  was  called  which  declared  the  country  independent  ence 
and  established  a  constitution  in  July,  1823.1    By  that  time  juiy,  1x23. 
Spain  had  been  deprived  of  all  her  possessions  in  the  New  Popular 
World  except  Cuba  and  Porto  Rico.    Thus  was  the  field  g°vem- 

ments  on 

cleared  for  the  creation  of  popular  governments,  on  the  North 
American  plan,  in  the  three  vast  areas  now  occupied  (1)  by  pian. 

1  Under  that  constitution  the  five  nations  (Guatemala,  Nicaragua,  Hondu- 
ras, El  Salvador,  and  Costa  Rica)  became  states  of  a  union  known  as  "  Federa- 
ci6n  de  Centra  America." 


474 


THE  SCIENCE  OF  JURISPRUDENCE 


Consti- 
tutions of 
single 
states. 

Guatemala. 


Salvador. 

Nicaragua. 
Costa  Rica. 
Honduras. 

Panama. 
Uruguay. 


Mexico;  (2)  by  the  Central  American  states  of  Costa  Rica, 
Nicaragua,  Honduras,  Salvador,  Guatemala,  and  Panama; 
and  (3)  by  the  South  American  states  now  known  as  the 
Argentine  Nation,  the  United  States  of  Brazil,  the  United 
States  of  Venezuela,  the  Republic  of  Uruguay,  the  Republic 
of  Chili,  the  Republic  of  Peru,  the  Republic  of  Ecuador,  the 
Republic  of  Colombia,  the  Republic  of  Paraguay,  and  the 
Republic  of  Bolivia.  Of  these  seventeen  sovereignties  thir- 
teen are  single  states  and  four  federal  unions.1 

5.  The  thirteen  single  states  are  Guatemala,  Salvador, 
Nicaragua,  Costa  Rica,  Honduras,  Panama,  Uruguay,  Chili, 
Peru,  Ecuador,  Colombia,  Paraguay,  and  Bolivia.  A  new 
constitution  promulgated  in  Guatemala  December  11,  1879, 
was  put  in  force  on  March  1,  1880.  That  constitution,  as 
amended  November  5,  1887,  is  the  one  now  in  force.2  Sal- 
vador is  governed  by  the  constitution  of  August  13,  1886. 
Nicaragua  is  governed  by  the  constitution  of  March  30, 1905.3 
Costa  Rica  is  governed  by  the  constitution  of  December  7, 
1871,  as  amended  in  1882  and  subsequent  dates.4  Honduras 
is  governed  by  the  constitution  promulgated  September  2, 
1904.  Panama  is  governed  by  the  constitution  adopted 
February  13,  1904.  Representatives  of  the  Uruguayan 
people  met  at  Montevideo  and  framed  the  constitution  of 
September  10,  1829,  which,  after  being  approved  (May  26, 
1830)  by  the  Brazilian  and  the  Argentine  governments,  was 
sworn  to  and  put  in  operation  July  18  of  the  same  year. 

1  As  to  the  constitutions  of  the  republics  on  the  Caribbean  Sea,  —  the 
Dominican  Republic,  the  Republic  of  Haiti,  and  the  Republic  of  Cuba,  with  the 
treaty  denning  its  relations  to  the  United  States,  proclaimed  July  2,  1904,  see 
American  Constitutions  published  by  International  Bureau  of  the  American 
Republic,  Jose  Ignacio  Rodriguez,  chief  translator,  ii.  7-154. 

*Cf.  Arosemena  (Justo),  Estudios  constitttcionalea  aobre  los  Gobiernos  de  la 
America  latino.  Paris,  1878. 

1  Cf .  Fernandez  Somoza  (Dr.  J.),  Curso  de  Derecho  constitutional  nicaragu- 
ense.  Managua,  1899. 

4  Cf.  Calvo  (Joaquin  Bernardo),  Republica  de  Costa  Rica.  San  Jose"  de  Costa 
Rica,  1886. 


ROMAN  AND  ENGLISH  LAW  COMB 'J 'NED  475 

That  constitution,  with  some  slight  modifications,  is  the  one 
now  in  force.    On  August  8,  1828,  a  new  "  National  Political 
Constitution"  was  promulgated  for  Chili,  but,  under  a  law  Chili, 
passed  in  October,  1831,  a  convention  was  called  for  the 
purpose  of  reforming  it.     On  May  23,  1833,  the  constitution 
then  framed  went  into  effect,  which  constitution,  as  amended 
to  June  26,  1893,  is  now  in  force.1    Peru  is  governed  by  the  Peru, 
constitution  promulgated  November  10,  1860,  the  last  of 
five  in  force  since  1823.    A  congress  which  met  at  Riobamba 
on  August  14,  1830,  promulgated  the  first  constitution  of  the 
Republic  of  Ecuador.    Since  then  eight  have  been  adopted.  Ecuador. 
The  last,  promulgated  in  1897,  is  now  in  force.2     Colombia  Colombia, 
is  governed  by  the  constitution  of  August  4,  1886.3    A  con- 
vention assembled  in  August,  1870,  framed  a  constitution 
for  Paraguay,  promulgated  on  the  25th  of  the  following  Paraguay. 
November,  which  is  still  in  force.    The  constitution  drafted 
for  Bolivia  by  Bolivar  in  1826  remained  as  the  fundamental  Bolivia, 
law  until  1831.     By  it  the  legislative  powers  were  vested  in 
three  chambers,  each  consisting  of  thirty  members.    That  Three 
constitution  was  superseded  by  another  promulgated  in  1831  c 
and  amended  three  years  thereafter.     Both  of  them  provided 
that  the  legislature  should  consist  of  not  more  than  two 
chambers.    In    October,    1836,    another    constitution    was 

1  It  was  maintained  before  the  Claims  Commission  established  at  Washing- 
ton under  the  treaty  of  August  7,  1892,  between  Chili  and  the  United  States, 
that  "on  the  31st  of  October  and  the  18th  of  November,  1816,  the  territory 
later  known  by  the   name  of    the  Republic  of  Chili   was   a  Spanish  colony. 
The  Commission  decided  that  as  the  Washington  government  did  not  recog- 
nize Chili    as    an  independent  nation  until  1822,  Chili  up  to  that  date  was 
nothing  to  the  United  States  but  a  county  de  jure  under  the  domination  of 
Spain."     As  to  the  constitution   of  Chili,  see  Carranza  (Arturo  B.),  Digeslo 
constitutional  america.no,  Buenos  Aires,  1900. 

2  Ecuador  was   called    "  the  kingdom  of   Quito  "  (El  Reino  de  Quito)  until 
1564.     Subsequently  it  was  called  the  presidency  of  Quito  (La  Presidencia  de 
Quito). 

*  Upon  the  disruption  in  1830  of  the  Republic  of  Colombia  (the  Great  Colom- 
bia), as  constituted  by  Bolivar,  the  three  Republics  of  Venezuela,  New  Granada 
(the  present  Colombia),  and  Ecuador  came  into  existence. 


476 


THE  SCIENCE  OF  JURISPRUDENCE 


English 
consti- 
tutional 
ideas  the 
basis. 


Division 
of  powers. 


Consti- 
tutional 
guarantees. 


Trial 
by  jury. 


adopted,  which  has  been  followed  by  those  of  1843, 1851, 1861, 
1868,  1871,  1878,  and  1880.  The  latter  is  still  in  force.1 
Students  of  comparative  politics  naturally  contrast  the  fore- 
going constitutions  with  those  of  the  individual  states  of  the 
North  American  Union  of  which  they  are  conscious  and 
substantial  reproductions.  So  far  as  political  theory  is  con- 
cerned Latin-American  statesmen  have  accepted  the  entire 
fabric  of  English  fundamental  ideas  in  the  form  in  which  they 
have  been  restated  in  the  Declaration  of  Independence  and 
in  the  Bills  of  Rights  annexed  to  our  state  constitutions. 
Guatemala  declares,  as  her  sister  states  declare,  that  "the 
supreme  power  of  the  Nation  is  republican,  democratic,  and 
representative,  and  is  divided  into  three  branches,  namely, 
legislative,  executive,  and  judicial,  which  shall  be  entirely 
independent  of  each  other  in  the  exercise  of  their  functions." 2 
That  English  idea,  in  the  dogmatic  form  it  has  assumed  in 
the  North  American  states,  is  universally  accepted.  Chili 
declares  that  "the  sovereignty  is  vested  essentially  in  the 
Nation,  which  delegates  its  exercise  to  the  authorities  estab- 
lished by  this  constitution."  s  The  authorities  so  endowed 
with  power  are  limited  in  its  exercise  by  declarations  con- 
tained in  Bills  of  Rights  usually  entitled  "guarantees," 
which  secure  to  the  citizen  freedom  of  speech,  the  right  of 
petition,  due  process  of  law,  the  right  of  habeas  corpus,  exemp- 
tion from  ex  post  facto  laws,  and  the  like.  In  many  instances 
trial  by  jury  in  criminal  cases  is  guaranteed.  Nicaragua 
goes  so  far  as  to  declare  that  "in  civil  cases  the  parties  may 
have  the  facts  passed  upon  by  a  jury.  The  verdict  having 
been  rendered,  the  judge  shall  limit  his  action  to  the  applica- 
tion of  the  law."  *  The  movement  in  that  direction  is,  how- 
ever, still  tentative.  The  constitution  of  Uruguay  provides 

1  Cf.    Sanjin£s   (Jenaro),  Las   Constituciones  politico*  de   Bolivia.     Estudio 
histdrico  y  comparativo.     La  Paz,  1906. 
*  Constitution  of  1879,  title  1,  art.  3. 
»  Constitution  of  1833,  ch.  1,  art.  3.  •  Title  xii.,  art.  90. 


ROMAN  AND  ENGLISH  LAW  COMBINED  477 

that  "one  of  the  first  attentions  of  the  General  Assembly 
shall  be  to  endeavor  to  establish  trial  by  jury  as  soon  as 
possible,  in  criminal  cases  and  even  in  civil  ones."  1     The 
same  tentative  advance  is  being  made  in  the  direction  of  Imperfect 
religious  liberty.     While  many  of  the  constitutions  declare  liberty1!8 
that  "  the  religion  of  the  state  is  Roman  Catholic  Apostolic," 
others  provide  a  qualified  freedom  within  the  temples,  or  an 
absolute  freedom,  as  in  Honduras,  where  the  provision  is 
that  "the  free  exercise  of  all  religions  shall  be  guaranteed."  2 
In  the  same  way  a  tentative  advance  is  being  made  toward  the 
acceptance  of  the  all-important  American  principle  that  to  Right  to 
the  judiciary  belongs  the  right  to  declare  unconstitutional  statutes 
enactments  null  and  void.     Before  that  principle  can  triumph  V0ld- 
in  Latin  America  it  must  overcome  the  idea  that  the  ultimate 
power  of  construction  belongs  to  the  chamber  or  chambers  its 
by  which  statutes  are  enacted.    Typical  illustration  of  that  °ppo1 
idea  may  be  found  in  the  constitutions  of  Costa  Rica,  Uruguay, 
Chili,  Peru,  and  Ecuador.     In  Chili  the  provision   is   that 
"Congress  alone  shall  have  the  power  to  settle,  in  conformity 
with  Article  31  and  the  following  of  the  Constitution,  any 
doubts  that  may  arise  in  regard  to  the  interpretations  of  the 
provisions  of  the  same."  s    A  contrary  tendency  appears  in  its 
the  constitutions  of  Nicaragua,  Honduras,  Panama,  Colom- 
bia, Paraguay,  and  Bolivia.    The  first  named  provides  that 
to  the  judicial  power  belongs  the  right  "  to  apply  the  laws  in 
the  individual  cases  submitted  to  its  examination,  to  inter- 
pret their  provisions  in  accordance  with  the  spirit  of  the 
constitution,  or  not  to  apply  them,  on  its  own  responsibility, 
when  they  prove  to  be  contrary  to  the  said  constitution";4 
the  second  named  provides  that  "the  power  to  render  ju- 
dicial decisions,  and  to  enforce  them,  belongs  to  the  courts 
of  justice.    They  shall  apply  the  law  to  the  concrete  cases 

1  Sec.  an.,  art.  137.  *  Ch.  xi.,  art.  155. 

»  Title  v.,  art.  46.  •  Title  xii.,  art.  92  (3). 


478 


THE  SCIENCE  OF  JURISPRUDENCE 


Bicameral 
system 
accepted  in 
South 
America. 


Rejected  in 

Central 

America. 


Lack  of 
strength  in 
local  or- 
ganization. 


Consti- 
tutions of 
federal 
states. 

Mexico. 


legally  submitted  to  their  cognizance,  and  shall  refuse  to 
comply  with  any  law  when  it  is  contrary  to  the  constitution" ; 1 
the  third  named  provides  that  "if  the  Executive  objects  to 
a  bill  on  the  ground  of  unconstitutionality,  and  the  National 
Assembly  insists  upon  its  passage,  the  bill  shall  be  referred 
to  the  Supreme  Court,  which  shall  render  its  decision  within 
six  days.  If  the  action  of  the  Assembly  is  sustained  by  the 
court,  the  Executive  shall  be  bound  to  sanction  and  pro- 
mulgate the  bill  as  law;  if  the  bill  is  pronounced  unconsti- 
tutional, it  shall  be  sent  to  the  archives."  2  It  is  certainly 
worthy  of  note  that  the  seven  single  states  of  South  America 
—  Uruguay,  Chili,  Peru,  Ecuador,  Colombia,  Paraguay,  and 
Bolivia  —  have,  without  an  exception,  accepted  the  English 
bicameral  system  in  the  organization  of  their  national  legis- 
latures. In  these  states  senates  and  houses  of  representa- 
tives, on  the  North  American  plan,  are  everywhere  to  be 
found.  On  the  other  hand,  the  six  single  states  of  Central 
America  —  Guatemala,  Salvador,  Nicaragua,  Costa  Rica, 
Honduras,  and  Panama  —  have,  without  an  exception, 
national  legislatures  consisting  of  one  chamber  only.  Such, 
in  general  terms,  is  the  form  in  which  English  constitutional 
law,  with  its  North  American  modifications,  has  been  repro- 
duced in  the  constitutions  of  the  single  states  of  Central  and 
South  America  which  are  now  passing  through  a  process  of 
steady  and  hopeful  development.  The  most  striking  point 
of  unlikeness  is  in  local  organization,  the  Latin-American 
states  lacking  that  tenacious  substructure  of  self-help  and 
self-government  embodied  in  the  English  township  and 
county  systems. 

6.  The  four  federal  unions  of  Latin  America  are  entitled 
the  United  States  of  Mexico,  the  Argentine  Nation,  the 
United  States  of  Brazil,  and  the  United  States  of  Venezuela. 
The  first  named  embraces  twenty-seven  states  and  two 

1  Title  xii.,  art.  106.  a  Title  x.,  art.  105. 


ROMAN  AND  ENGLISH  LAW  COMBINED  479 

territories,  with  a  federal  district  wherein  is  situated  the 
city  of  Mexico,  the  capital  of  the  Union.  The  first  Mexican 
Congress  (Congreso  de  Anahuac)  met  at  Chilpancingo,  Sep- 
tember 14,  1813,  and  on  November  6  solemnly  proclaimed 
the  independence  of  Mexico.  On  October  22,  1814,  was 
promulgated  the  first  Mexican  constitution,  vesting  the 
executive  power  in  three  persons  to  be  elected  by  Congress. 
The  monarchical  scheme  embodied  in  the  plan  de  Iguala,  of 
February  24,  1821,  was  overturned  by  a  revolutionary  move- 
ment at  the  end  of  the  following  year.  The  second  consti- 
tution of  Mexico  (Constitution  de  los  Estados  Unidos  Mexi- 
canos),  promulgated  October  4,  1824,  established  a  federal 
republic  similar  to  that  of  the  United  States.  On  January 
1,  1837,  a  new  constitution  was  promulgated,  rejecting  the 
federal  principle,  and  reducing  the  states  to  the  status  of 
provinces  (departmentos) ,  subject  to  a  central  government, 
republican  in  form.  On  May  15,  1856,  President  Comonfort, 
acting  under  the  provisions  of  the  Ayutla  platform,  as  amended 
at  Acapulco,  promulgated  the  constitution  called  "  Provisional 
Organic  Statute  of  the  Mexican  Republic."  That  statute 
was  superseded  February  5,  1857,  by  the  present  "Political 
Constitution  of  the  Mexican  Republic."  *  The  Argentine 
Nation  is  a  union  of  fourteen  provinces  (or  states),  each  with  Argentine 
its  own  constitution,  and  retaining  all  the  powers  not  dele-  Natlon- 
gated  to  the  federal  government.  The  revolution  of  May  25, 
1810,  culminated  in  the  resignation  of  the  last  Spanish  vice- 
roy and  the  establishment  at  Buenos  Aires  of  a  "Junta 
Provisional"  The  revolution  of  October  8,  1812,  culminated 
in  the  meeting,  on  January  31, 1813,  of  a  congress,  or  "Asam- 

1  Cf .  Castillo  de  Velazo  (Jos6  del),  Derecho  constitucional,  Mexico,  1871; 
Coronado  (Mariano),  Derecho  constitutional,  Guadalaxara,  1899;  Gamboa 
(J.  M.),  Leyes  constitucionales  ;  Montiel  y  Duarte,  Derecho  publico  mexicana, 
Mexico,  1871 ;  Moreno  Cora  (Silvestre),  Eljuicio  de  amparo ;  Torre  (Juan  de  la), 
Constituci6n  mexicana,  Mexico,  1904;  Vallarta  (Ignacio  L.)i  Juicio  de  amparo 
y  Votos,  Mexico,  1895. 


480  THE  SCIENCE  OF  JURISPRUDENCE 

blea  General  Constituyente"  which  abolished  slavery,  adopted 
a  national  coat  of  arms,  provided  for  the  coinage  of  national 
money,  and  either  repealed  or  amended  various  Spanish  laws 
then  in  force.  A  new  Congress  assembled  March  24,  1816, 
elected  a  "Director  Supremo"  of  the  Union  and  made  the 
Declaration  of  Independence  of  July  9,  1816.  Three  years 
thereafter  the  Congress  of  Buenos  Aires  framed  the  Consti- 
tution of  1819,  proclaimed  and  sworn  to  May  25  of  the  same 
year.  On  December  16,  1824,  a  Congreso  General  Consti- 
tuyante  met  at  Buenos  Aires  and  proclaimed  on  January  23 
following  a  "fundamental  law,"  declaring  that  the  prov- 
inces renewed  their  compact  for  the  preservation  of  the 
national  independence,  and  that,  until  a  constitution  should 
be  framed  and  adopted,  they  would  rule  themselves  by  laws 
of  their  own.  Not  until  May  1,  1853,  was  a  federal  consti- 
tution, having  for  its  model  the  Constitution  of  the  United 
States,  proclaimed  at  Santa  Fe.  On  September  25,  1860, 
that  constitution  was  amended  by  a  convention  held  at  the 
same  city,  and,  as  amended,  it  is  the  one  which  ever  since, 
United  with  certain  minor  modifications,  has  been  in  force.1  Brazil 
Brad!  ***  was  an  empire  unt^  November  15,  1889,  when  in  a  single 
day,  and  without  bloodshed,  the  monarchy  was  overthrown. 
Emperor  Dom  Pedro  II.  then  abdicated  the  crown,  and  a 
republic  was  created  on  the  basis  of  the  federation  of  the 
provinces,  twenty  in  number,  elevated  to  the  status  of  states. 
The  existing  federal  constitution  dates  from  February  24, 
1891.2  On  July  5, 1811,  the  "representatives  of  the  United 

1  Cf.  Carranza  (Arturo  B.),  Republica  Argentina,  constitucidn  National  y 
constitutions  provinciates  vigentes,  Buenos  Aires,  1898 ;  Castro  (Maximo)  y 
Calandrelli  (Alcides  V.),  Nociones  de  Derecho  Constitutional,  Buenos  Aires, 
1895;  Sarmiento  (Domingo  F.),  Comentarios  de  la  Constitutidn  de  la  Confed- 
eratidn  Argentina,  1853. 

a  Constituicsio  da  Republica  dos  Estados  Unidos  do  Brazil  accompanhada 
das  leis  organicas  publicadas  desde  15  de  Novembro  de  1889,  Rio  de  Janeiro, 
Imprensa  nacional,  1891 ;  Freire  (Felisbello),  Historia  Constitutional  da  Re- 
publica dos  Estados  Unidos  do  Brazil,  Rio  de  Janeiro,  1894;  Rodrigues  (Jos6 
Carlos),  Constitui^ao  da  politico  do  Imperio  do  Brazil,  Rio  de  Janeiro,  1863. 


ROMAN  AND  ENGLISH  LAW  COMBINED  481 

Provinces  of  Caracas,  Cumand,  Barinas,  Margarita,  Barcelona,  United 
Merida,  and  Trujillo,  forming  the  American  Confederation  of  Venezuela. 
Venezuela,  in  the  Southern  Continent,  in  Congress  assembled," 
declared  that  said  United  Provinces  were  and  ought  to  be 
from  that  day,  de  jure  and  de  facto,  free  and  independent 
states,  and  that  they  were  absolved  from  all  allegiance  to 
the  crown  of  Spain.  On  December  21  the  said  Congress 
framed  a  federal  constitution  for  the  "  United  States  of  Vene- 
zuela," by  which  the  executive  power  was  vested  in  a  tri- 
umvirate, directly  elected  by  the  people;  the  legislative  in  a 
general  congress,  consisting  of  a  senate  and  a  house  of  repre- 
sentatives; and  the  judicial  in  a  supreme  court  and  various 
inferior  courts.  On  December  17,  1819,  Venezuela  became 
a  member  of  the  "Republic  of  Colombia,"  usually  called  "the 
great  Colombia,"  and  so  continued  down  to  its  disruption 
ten  years  later.  Then  it  was  that  Venezuela  promulgated 
its  own  constitution  of  September  22,  1830.1  Since  that 
time  it  has  had  eight  constitutions,  promulgated  respectively 
on  April  18,  1857,  December  31,  1858,  April  22,  1864,  May 
27,  1874,  April  27,  1881,  June  21,  1893,  March  26,  1901, 
and  April  27,  1904.  The  existing  constitution  provides  that 
"the  Districts  constituting  the  Venezuelan  Federation  shall  state 
be  so  grouped  to  form  the  states  of  Aragua,  Bermudez,  Bolivar,  ^ven™y 
Carabobo,  Falcon,  Gudrico,  Lara,  Me>ida,  Miranda,  Tdchira,  zuela  and 
Trujillo,  Zamora,  and  Zulia."  It  is  further  provided  that 
"  the  states  composing  the  Venezuelan  Union  are  autonomous 
and  politically  equal ;  they  shall  preserve  in  all  its  plenitude 
the  sovereignty  not  delegated  in  this  Constitution,  and  bind 
themselves:  1.  To  organize  their  own  governments,  in  such 
a  way  as  to  make  them  popular,  elective,  federal,  repre- 
sentative, alternative,  and  responsible,  and  to  frame  their 
respective  constitutions  in  accordance  with  the  principles  of 

1  Spain  did  not  recognize  the  Independence  of  Venezuela  until  the  26th  of 
March,  1845. 
2i 


482 


THE  SCIENCE  OF  JURISPRUDENCE 


Mexico. 


Weakness 
in  the  sub- 
structure. 


this  fundamental  compact."  l  The  constitution  of  Mexico 
provides  that:  "The  people  exercise  their  sovereignty 
through  the  federal  powers  in  matters  belonging  to  the 
Union,  and  through  those  of  the  states  in  the  matters  relat- 
ing to  the  internal  re'gime  of  the  latter.  This  power  shall  be 
exercised  in  the  manner  respectively  established  by  the  con- 
stitutions, both  federal  and  state.  The  latter  shall  in  no 
case  contravene  the  stipulations  of  the  federal  compact." 
Such  provisions  reveal  a  definite  and  earnest  purpose  to 
construct  artificially  out  of  a  province  or  district  of  Latin 
origin  an  autonomous  state  that  shall  stand  to  the  federal 
head  in  the  same  independent  relation  in  which  a  North 
American  state,  of  English  origin,  stands  to  the  federal  head. 
The  fact  that  such  an  effort  is  necessary  reveals,  however, 
the  most  striking  fundamental  difference  that  divides  federal 
unions  in  the  two  Americas.  In  the  southern  group  there 
is  an  absence  of  the  naturally  organized  system  of  local 
self-governing  communities,  the  peculiar  product  of  the 
English  race,  out  of  whose  coalescence  the  typical  English 
states  in  the  northern  group  have  arisen.  In  speaking  of 
the  latter  Bryce  has  well  said:  "They  existed  before  it  [the 
Union].  They  could  exist  without  it."  a  And  to  that  may 
be  added  Tocqueville's  declaration :  "  To  examine  the  Union 
before  we  have  studied  the  states,  would  be  to  adopt  a  method 
filled  with  obstacles.  .  .  .  The  great  political  principles 
which  now  govern  American  society  undoubtedly  took  their 
growth  in  the  state."  s  The  self-sustaining  and  preexisting 
state,  as  the  source  of  the  principles  of  local  self-government, 
is  the  great  desideratum  in  the  federal  republics  of  Latin 

1  Title  ii.,  art.  7,  i.     The  best  translations  of  the  federal  constitutions  in  ques- 
tion are  to  be  found  in  the  American  Constitutions,  i.  37-232,  so  ably  edited  by 
the  accomplished  scholar  and  jurist,   Jos6   Ignacio   Rodriguez,   the  author's 
friend,  who  completed  his  long  and  important  task  just  before  death  closed  his 
long  and  useful  life. 

2  The  American  Commonwealth,  i.  14. 

1  Democracy  in  America  (Bowen's  ed.),  i.  73,  74. 


ROMAN  AND  ENGLISH  LAW  COMBINED  483 

America.    And   yet,   despite   that   drawback,   the   progress  The  effort 
which  has  been  made  is  wonderful  indeed.    There  is  no  reason  i°. re 
to  doubt  that  it  will  be  continuous,  and  that  wise   admin- 
istrators will  there  gradually  infuse  into  the  several  state 
systems  an  adequate  degree  of  the  spirit  and  practice  of 
local  autonomy. 

The  superstructures  of  the  four  federal  states  in  question  Super- 
approach  very  closely  the  prototype  after  which  they  were  Of  federal 
fashioned.    Each  embodies  the  "wholly  novel  theory"  of  e 
a  federal  government,  —  strictly  organized,  and  divided  into 
three   departments,   executive,   legislative,   and   judicial,  — 
operating  directly  upon  the  individual  and  not  upon  states  as 
corporations.    The  constitution  of  Mexico,  which  will  be  taken 
as  typical,  provides  that  "the  supreme  power  of  the  Federa-  Division 
tion  is  divided  for  its  exercise  into  legislative,  executive,  and  °  **" 
judicial.    Two  or  more  of  these  powers  shall  never  be  united  in 
one  person  or  corporation,  nor  shall  the  legislative  power  be 
vested  in  one  individual."    It  is  then  provided  that  "the 
legislative  power  of  the  nation  is  vested  in  a  general  congress 
which  shall  consist  of  a  chamber  of  deputies  and  a  senate."  l 
The  exclusive  powers  of  each  house  and  their  relations  to 
each  other  as  coordinate  bodies  are  substantially  the  same 
as  in  our  own  system.    The  Mexican  senate  is,  however,  armed  Extraor- 
with  these  extraordinary  and  exclusive  powers :  "  To  declare,  powers  of 
when  the  constitutional,  legislative,  and  executive  powers  of  senate- 
any  state  have  disappeared,  that  the  moment  has  arrived  to 
give  the  said  State  a  provisional  governor,  who  shall  order 
elections  to  be  held  according  to  the  constitutional  law  of 
the  State.    The  appointment  of  such  governor  shall  be  made 
by  the  Federal  Executive  with  the  approval  of  the  Senate, 
or  in  its  recess  of  the  permanent  committee.  ...     To  decide 
any  political  questions  which  may  arise  between  the  powers 
of  a  State,  if  any  of  them  applies  to  it,  for  that  purpose,  or 

1  Title  iii.,  arts.  50,  51. 


484  THE  SCIENCE  OF  JURISPRUDENCE 

when  the  constitutional  order  has  been  interrupted  by  an 
armed  conflict  in  consequence  of  said  questions."  *  Thus 
these  wise  provisions  offer  a  remedy  in  cases  necessarily  in- 
interstate  cident  to  an  undeveloped  state  autonomy.  As  the  equiva- 
lent of  our  interstate  commerce  clause,  which  provides  that 
"the  Congress  shall  have  power  to  regulate  commerce  with 
foreign  nations,  and  among  the  several  states,  and  with  the 
Indian  tribes," 2  the  Mexican  constitution  provides  that  the 
Congress  shall  have  power  "to  enact  laws  fixing  the  duties 
to  be  levied  on  foreign  commerce,  and  prevent,  by  general 
provisions,  onerous  restrictions  from  being  established  on 
the  commerce  between  the  states."  8  A  part  of  the  federal 
machinery  that  finds  no  counterpart  in  our  own  is  repre- 
sented by  what  is  known  in  the  Mexican  constitution  as  the 
Permanent  Permanent  Deputation,  a  body  formed  out  of  the  two  houses 
to  act  as  a  check  on  executive  authority.  In  the  vacation 
of  Congress  it  is  authorized  to  do  those  things  that  must  be 
done  by  the  chambers  when  in  session  in  order  to  give  validity 
judicial  to  executive  acts.4  In  Mexico  the  judicial  power  is  vested 
in  a  supreme  court,  and  in  district  and  circuit  courts,  whose 
jurisdiction  extends,  in  a  general  way,  to  all  matters  of  which 
our  federal  courts  have  jurisdiction,  except  that  they  have 
no  jurisdiction  of  causes  arising  under  their  federal  consti- 
tution, and  under  laws  affecting  private  interests  only,  such 
being  vested  in  the  state  courts.  Neither  have  the  Mexican 
federal  courts  jurisdiction  of  cases  on  the  ground  of  diverse 
citizenship,  whilst  the  jurisdiction  over  controversies  between 
a  state  and  the  citizen  of  another  state,  denied  by  our  Eleventh 
Amendment,  still  exists  under  that  system.  The  jurisdic- 
tion of  the  supreme  court  is  appellate,  except  in  controversies 
between  stat.e  .and  state,  and  between  Union  and  state,  and 

1  Title  iii.,  par.  iii.,  B.  v.,  vi.  Amendments. 

a  Art.  i.  8.  *  Title  iii.,  par.  iii.,  art  ix. 

•Title  iii.,  par.  iv.,  as  amended  September  25,  1873,  and  November  13,  1874. 


ROMAN  AND  ENGLISH  LAW  COMBINED  485 

as  to  questions  of  jurisdiction  between  the  tribunals  of  states, 
between  federal  tribunals  asserting  conflicting  jurisdictions 
and  between  state  and  federal  tribunals.1    Instead  of  our  A  formal 
first  ten  amendments  the  Mexican  constitution  contains  a  right*, 
formal  bill  of  rights  in  which  "the  rights  of  man"  ("de  los 
derechos  del  hombre")  are  protected  by  all  the  "individual 
guarantees"   provided  by  English  constitutional  law.     As  suspension 
Article  29  provides  for  the  suspension  of  such  guarantees,  anfees!^ 
under  certain  circumstances,  Article  101  provides  that  "  the 
tribunals  of  the  Federation  shall  decide  all  questions  arising 
out  of:   I.  Laws  or  acts  of  whatever  authority  violating  in- 
dividual guarantees.    II.  Laws  or  acts  of  the  federal  author- 
ity encroaching  upon  or  restricting  the  sovereignty  of  the 
states.     III.  Laws  or  acts  of  the  state  authorities  invading 
the  sphere  of  the  federal  authority."    Article  102  provides 
that :  "All  the  cases  referred  to  in  the  preceding  article  shall 
be  conducted,  on  petition  of  the  aggrieved  party,  according 
to  rules  of  proceedings  which  a  special  law  shall  establish. 
The  decision  shall  always  be  rendered  in  such  a  language  as  Limitation 
exclusively  to  affect  the  individuals  concerned  in  the  case,  decisions* 
limiting  itself  to  defend  and  protect  them  in  the  special  case 
to  which  the  proceedings  refer,  without  making  any  general 
declaration  respecting  the  law  or  the  act  which  gave  rise  to 
the  case."     In  protecting  rights  under  that  grant  of  juris- 
diction the  courts  hold  acts  of  the  federal  congress  and  of 
the  state  legislatures  unconstitutional  and  void,  and  restrain 
their    enforcement    by    appropriate    remedies.    Under    the 
implied  powers  granted  by  Articles  101  and  102  the  courts 
issue,  in  lieu  of  the  writ  of  habeas  corpus,  the  writ  of  Amparo,  Writ  of 
which  combines  the  functions  of  habeas  corpus,  mandamus, 
sequestration,  injunction,  and  prohibition,  and  protects  the 

1  Cf.  the  instructive  paper  read  by  William  H.  Burgess,  July  13,  1905,  before 
the  Texas  Bar  Association,  and  entitled  "A  Comparative  Study  of  the  Consti- 
tutions of  the  United  States  of  Mexico  and  the  United  States  of  America." 


486 


THE  SCIENCE  OF  JURISPRUDENCE 


Trial  by 
jury- 


Abolished 
as  to  press 
offenses. 


In  use  in 
Federal 
District  of 
Mexico. 


citizen  against  unlawful  encroachments  on  either  his  person 
or  property.1 

Mexican  lawyers  have  manifested  but  little  inclination  to 
accept  trial  by  jury.  Article  seven  of  the  federal  constitu- 
tion provided  that,  "Trials  for  offenses  committed  through 
the  press  shall  be  held  before  a  jury  which  shall  pass  upon  the 
facts  and  another  jury  which  shall  apply  the  law  and  fix  the 
penalty  to  be  imposed."  But  as  the  practical  result  was  the 
acquittal  of  the  accused  in  all  such  cases,  the  constitution  was 
so  amended,  May  15,  1883,  as  to  abrogate  jury  trials  even  as 
to  press  offenses,  which  are  now  punished  like  crimes  of  any 
other  character.  The  only  remaining  experiment  is  that 
now  in  force  in  the  Federal  District,  corresponding  with 
our  District  of  Columbia.  Senor  Matias  Romero,  for  a  long 
time  the  very  able  envoy  of  Mexico  at  Washington,  has  told 
us  that  Senor  Mariscal,  when  secretary  of  state,  "made  a 
special  study  of  the  jury  system  in  the  United  States,  and 
when  he  went  home  and  became  secretary  of  justice  under 
President  Juarez's  administration,  he  established,  in  1869,  a 
jury  system  in  the  Federal  District  of  Mexico  for  criminal 
cases,  changing  it  somewhat,  so  as  to  adapt  it  to  the  peculiar 
conditions  of  the  Mexican  character.  .  .  .  Under  the  sys- 
tem of  jurisprudence  prevailing  in  the  Federal  District  of 
Mexico  all  the  preliminary  proceedings  in  a  criminal  trial, 
such  as  the  examination  of  the  accused,  the  taking  of  testi- 
mony, etc.,  takes  place  before  the  judge  who  presides  over 
such  proceedings  without  a  jury;  when  this  has  been  com- 
pleted and  the  case  is  ready  to  be  submitted,  the  jury  is  im- 
paneled and  the  evidence  is  read  to  it,  as  set  forth  in  the 
record  already  formed;  the  prosecuting  attorney  then  pre- 
sents the  charges,  the  defense  is  heard,  and  the  witnesses  of 
both  parties  are  examined  and  cross-examined;  thereupon 


1  As  to  the  writ  of  habeas  corpus  and  Amparo,  see  Romero,  Mexico  and  the 
United  States  (1898),  p.  145. 


ROMAN-  AND  ENGLISH  LAW  COMBINED  487 

the  jury  renders  its  verdict  adjudging  the  accused  either 
innocent  or  guilty,  following  substantially  the  practice  under 
the  common  law  of  England  and  of  the  United  States.  In 
most  of  the  Mexican  states  the  old  Spanish  system  of  criminal 
jurisprudence  yet  prevails."  *  By  the  code  of  criminal  pro- 
cedure  of  July  6,  1891,  it  was  provided  that  the  jury  should 
consist  of  nine  members,  a  majority  of  whom  could  render  a  re<iuired 
verdict.  The  number  has  since  been  raised  to  fifteen,  with 
the  majority  rule  unchanged.  With  that  statement  appro- 
priately ends  the  foregoing  attempt  to  explain  the  extent  to 
which  English  public  law,  in  its  North  American  form,  has 
been  embodied  in  the  outer  shells  of  Latin-American  states, 
single  and  federal.  Even  to  the  casual  observer  it  is  mani-  English 
fest  that  it  has  been  accepted  as  the  basis  of  the  entire  con- 
stitutional  system,  so  far  as  it  could  be  assimilated  by  Latin 
peoples  who  do  not  possess  the  peculiar  local  forms  of  self- 
governing  communities  in  which  the  English  race  has  been 
trained  in  self-government.  Nothing  could  be  more  com- 
plete than  the  acceptance  of  the  English  political  theory  of 
liberty  as  it  has  been  unfolded  from  Magna  Carta  down  to 
and  including  the  Declaration  of  Independence.  The  great 
formulas  have  all  been  reproduced  in  Spanish  or  Portuguese 
forms  that  adhere  very  closely  to  the  originals.  The  three  Three 
fundamentals  that  have  been  accepted  tentatively  are :  (1)  the  ^entt 
right  of  the  judicial  power  to  declare  laws  unconstitutional;  tentative 
(2)  trial  by  jury,  even  in  criminal  cases;  (3)  the  English 
bicameral  system  of  legislatures.  And  yet  such  decided  prog- 
ress is  being  made  even  in  those  particulars  that  it  is  not 
dangerous  to  predict  that  in  the  near  future  the  constitutions 
of  Latin-American  states  will  be  identical,  in  every  material 
particular,  with  the  prototypes  after  which  they  have  been 
modeled.  But  while  that  is  being  said  as  to  the  public  law 
of  such  states,  the  fact  should  not  be  forgotten  that  each  and 

1  See  Mexico  and  the  United  States,  p.  411. 


488 


THE  SCIENCE  OF  JURISPRUDENCE 


Latin- 
American 
codes. 


Roman  all  of  them  are  clinging  with  tenacity  to  their  interior  codes 
of  private  law,  all  of  Roman  origin.  There  is  no  reason  to 
doubt  that  as  time  goes  on  that  immortal  and  universal  sys- 
tem of  private  law  will  wax  stronger  and  stronger  in  the  great 
and  growing  empire  to  the  south  of  us,  which  is  destined  to 
illustrate  to  the  world  the  fact  that  the  most  perfect  of  all 
state  law  systems  is  that  in  which  the  constitutional  law 
is  English  and  the  interior  private  law,  Roman. 

7.  From  what  has  been  said  it  clearly  appears  that  into 
the  American  colonies  founded  by  Spain  Roman  private  law 
passed  in  the  form  in  which  it  was  embodied  in  the  SietePar- 
tidas;  that  into  the  great  colony  of  Brazil,  dominated  by 
Portugal,  Roman  private  law  passed  in  the  form  in  which  it 
was  embodied  in  the  Ordenagoes  Philippinas  of  1603.  Upon 
these  fundamental  bases  Latin-American  private  law  re- 
poses within  the  two  great  areas  in  question,  just  as 
North  American  private  law  reposes  upon  the  basis  of  the 
law  of  England.  To  the  student  of  comparative  law  the 
codifications  of  Latin  America  offer  an  unplowed  field  as 
rich  as  it  is  inaccessible.  It  is  greatly  to  be  deplored  that 
it  is  now  impossible  to  procure  even  at  Washington  the  data 
necessary  for  such  an  investigation.1  There  is,  however,  one 
great  invention  contained  in  the  constitution  of  at  least  one 
of  the  federal  states  to  the  south  of  us  that  should  be  made 
the  subject  of  serious  reflection.  The  federal  constitution 
of  Mexico,  as  amended  December  14,  1883,  provides  that  the 
congress  shall  have  power  "to  promulgate  mining  and  com- 
mercial codes,  which  shall  be  observed  throughout  the  whole 
Republic.  The  banking  law  shall  form  a  part  of  the  code  of 
commerce."  The  growing  inconveniences  arising  out  of  the 
conflict  of  commercial  and  other  laws  in  their  nature  national, 

1  There  is  good  reason  to  hope  that  within  a  comparatively  short  time  the 
codes  of  all  the  Latin-American  republics  will  be  procured  by  the  Library  of 
Congress. 


A  great 
invention. 


ROMAN  AND  ENGLISH  LAW  COMBINED  489 

such  as  the  law  of  divorce,  must  inevitably  force  the  vesting, 
by  constitutional  amendment,  of  a  like  code-making  power 
in  the  Congress  of  the  United  States. 

8.  The  Roman-Dutch  law  is  the  common  law  of  all  the  Roman- 
South  African  colonies,  as  well  as  of  Ceylon  and  British  muSouthW 


Guiana.    While  to  an  uncivilized  country,  such  as  America 

was,  English  subjects  carry  with  them,  as  their  birthright,  »nd  British 

the  laws  of  England  existing  when  the  colonization  takes 

place,1  in  a  civilized  one  the  laws  prevailing  at  the  time  of 

conquest  are  continued,  until  an  alteration  is  made.2    The 

Dutch  East  India  Company,  in  founding  their  settlements 

in  the  East  Indies  and  at  the  Cape  of  Good  Hope,  took  with 

them  to  their  colonies  the  law  of  Holland,  which  thus  came 

to  be  administered  in  two  hemispheres.    At  the  time  of  the 

first  capture  by  the  British  in  1795  of  the  Cape  of  Good  Hope, 

the  Roman-Dutch  law  then  in  force,  including  all  the  general 

placaats   issued    by  the  Dutch  East    India  Company,  was 

retained.    No  general  legislative  change  was  made  at  the 

annexation  in  1806.    In  Seaville  v.  Colley,  9  S.C.  44,  De 

Villiers,  C.J.,  said:  "The  conclusion  at  which  I  have  arrived 

as  to  the  obligatory  nature  of  the  body  of  laws  in  this  Colony, 

at  the  date  of  the  British  occupation  in  1806,  may  be  briefly 

stated.    The  presumption  is  that  every  one  of  those  laws, 

if  not  repealed  by  the  local  Legislature,  is  still  in  force."  8 

In  British  Guiana,  acquired  by  England  in  1814,  the  Roman- 

Dutch  law  prevailing  in  the  colony  at  the  time  of  the  acquisi- 

1  Blankard  v.  Galdy,  2  Salk.  411  ;    the  decision  of  the  Lords  of  the  Privy 
Council,  2  P.  Wms.  75  ;    Button  v.  Howell,  Show.  Parl.  Ca.  31,  32  ;  1  Blackst. 
Comm.  107. 

2  That  rule  must,  however,  be  qualified  by  Judge  Tarring  'e  statement  that 
"laws  contrary  to  the  fundamental  principles  of  the  British  Constitution  cease 
at  the  moment  of  conquest.  "     The  Law  of  the  Colonies,  p.  23.     See  also  Calvin's 
Case,  7  Co.  17  ;  Kent,  Comm.,  12th  ed.  (Holmes),  i.  645. 

1  That  presumption  will  not,  however,  prevail  in  regard  to  any  rule  of  law 
inconsistent  with  South  African  usage,  the  best  proof  of  which  is  to  be  found  in 
judicial  decisions.  See  Nathan,  Common  Law  of  South  Africa,  i.  19.  Graham- 
ston  and  London,  1904. 


490 


THE  SCIENCE  OF  JURISPRUDENCE 


Natal. 


Orange 

Free 

State. 


Origin  and 
nature  of 
Roman- 
Dutch  law. 


Influence  of 
canon  law ; 


of  feudal 
law. 


tion  is  followed,  where  local  ordinances  and  proclamations 
having  the  force  of  law  do  not  apply.  In  Ceylon,  while  the 
English  law  of  evidence,  trial  by  jury  in  the  more  serious 
criminal  cases,  and  the  English  mercantile  law  have  been 
introduced  as  in  South  Africa,  by  local  enactments,  the 
Roman-Dutch  law  applies  where  no  other  system  of  law 
specially  applies.  In  the  colony  of  Natal,  which  was  pro- 
claimed as  a  British  possession  in  1840,  the  common  law  of 
the  Cape  of  Good  Hope,  Roman-Dutch  law,  was  by  procla- 
mation made  to  apply.  Chapter  9  of  the  constitution  of  the 
Orange  Free  State  (§  57)  provided  that,  "  Roman-Dutch  law 
shall  be  the  principal  law  of  this  State,  in  cases  where  the 
Volksraad  has  made  no  other  law  applicable  to  the  circum- 
stances." A  word  should  here  be  said  as  to  the  origin  and 
nature  of  the  Roman-Dutch  law  thus  transferred  from  Hol- 
land to  her  colonies.  It  is  clear  that  the  original  body  of 
observances  and  rules  that  govern  the  people  of  Holland  in 
their  conduct  and  mutual  intercourse  was  of  customary  growth 
and  Teutonic  in  its  origin  like  the  customary  law  of  England. 
From  traces  of  sacerdotal  legislation  (such  as  regulations 
relating  to  divorce  and  separation  from  bed  and  board)  still 
to  be  found  in  collections  of  Dutch  law,  it  appears  that  the 
customary  law  was  first  modified  by  infusions  drawn  rather 
from  the  canon  law  than  from  the  civil  law  of  Rome.  It  was 
the  spread  of  the  feudal  system  and  the  adoption  with  it  of 
many  Frankish  or  French,  as  opposed  to  German,  ideas  and 
customs  that  brought  about  the  introduction  of  Roman  civil 
law.  While  there  is  no  certainty  as  to  the  date,  that  change 
seems  to  have  taken  place  about  the  ninth  or  tenth  century. 
On  the  authority  of  Van  Leeuwen  it  may  be  stated  that  the 
feudal  law  was  specifically  made  the  common  law  of  the  Neth- 
erlands, by  proclamations  issued  at  various  times  by  the 
Emperors  Henry,  Lothair,  Conrad,  and  Frederick  Barbarossa. 
One  of  the  feudal  lords  of  Holland  and  the  adjoining  terri- 


ROMAN  AND  ENGLISH  LAW  COMBINED  491 

tories  was  King  William  II.,  the  eighteenth  Count  of  Holland, 

who  "  being  crowned  and  confirmed  as  King  of  the  Romans  Roman  law 

imposed  by 

by  the  Princes  of  the  Empire,  when  he  was  about  twenty  wmiam  n. 
years  of  age,  resolved  that  the  Dutch  should  use  the  Roman 
law  in  the  future."  When  the  canon  law  was  abrogated  at 
the  Reformation,  the  secular  system,  Roman  civil  law,  en- 
tirely supplanted  it,  and  henceforth  the  two  systems,  Teutonic 
customary  law  and  Roman  law,  became  indissolubly  blended, 
and  formed  the  system  known  as  Roman-Dutch  law.  Where 
such  customary  law,  general  or  local,  did  not  apply,  the 
Roman  law,  particularly  that  which  was  found  in  the  Code, 
Pandects,  Institutes,  and  Novels  of  Justinian,  was  resorted 
to  by  the  general  Court  of  Pleas  in  Holland,  the  earliest  Dutch 
court.  As  novel  circumstances,  to  which  the  Roman  law  did 
not  apply  directly,  or  could  not  be  made  to  apply  by  way  of 
analogy,  arose,  general  or  special  laws,  known  as  Placaats  or  Modified  by 
Ordinances,  were  framed  and  promulgated  to  meet  the  wants  ordinances, 
of  the  people  of  the  Netherlands.  It  thus  appears  that  while 
Roman  law  did  not  replace  Dutch  customary  law,  it  was  in- 
troduced into  the  Netherlands  as  a  system,  and  then  modi- 
fied by  customary  law.  If  a  custom  was  not  as  universal  as 
the  original  law  which  it  modified,  or  professed  to  modify, 
the  original  law  still  remained  in  force  in  those  places  where 
the  modifying  custom  was  not  in  vogue.  For  instance, 
a  custom  modifying  the  application  in  the  town  of  Amster- 
dam of  the  general  Dutch  law  did  not  alter  that  law;  and  if  Special 
the  Dutch  law  was  afterwards  imported  bodily  into  another 
country  (such  as  the  Cape  of  Good  Hope),  the  Amsterdam  cus- 
tom did  not  affect  it.  The  modification  might  also  take  place 
by  means  of  a  general  statute  or  by  abrogation  through  dis- 
use. There  is  a  passage  in  the  Digest  in  which  Julianus  says, 
"The  doctrine  has  been  most  properly  accepted,  that  laws  Abrogation 
are  abrogated,  not  only  by  the  vote  of  the  legislator,  but  also 
by  the  tacit  consent  of  all,  through  disuse."  The  operation 


492 


THE  SCIENCE  OF  JURISPRUDENCE 


Alterations 
after  im- 
portation 
from 
Holland. 


Roman- 
Dutch 
jurists. 


Universi- 
ties of 
Leyden  and 
Utrecht. 

Gail. 


Grotius. 


of  that  doctrine  Voet  is  inclined  to  confine  to  countries  in 
which  a  democratic  form  of  government  prevails ;  that  is,  in 
which  the  power  of  legislation  rests  with  the  people  as  dis- 
tinguished from  those  in  which  the  power  has  been  delegated 
to  a  princeps.  Any  alteration  whether  by  statute,  procla- 
mation, or  custom,  which  has  been  made  in  Roman-Dutch 
law  after  its  importation  from  Holland  into  any  other  coun- 
try, is  not  Roman-Dutch  law,  but  the  law  of  the  country 
where  such  alteration  takes  place.  The  Roman-Dutch 
law  is,  and  can  only  be,  the  Roman  law  as  it  existed  in 
Holland,  and  as  it  was  modified  by  Dutch  customs  and 
ordinances.1 

The  Roman-Dutch  law,  consisting  of  the  Corpus  Juris 
Civilis,  as  modified  by  general  Dutch  statutes,  placaats,  and 
customs,  was  not  contained  in  any  one  enactment,  or  in  any 
series  of  enactments,  and  it  remained  an  undigested  mass 
until  it  was  restated  in  a  concise  and  systematic  form  by  the 
unimaginative  jurists  of  Holland  who  flourished  during  the 
period  between  1500  and  1800,  and  whose  writings  reflect 
in  an  eminent  degree  the  real  spirit  and  intention  of  Roman 
law.  From  all  parts  of  the  world  law  students  were  drawn 
to  the  Universities  of  Leyden  and  Utrecht,  whose  fame, 
despite  Holland's  vicissitudes,  is  still  fresh  in  the  dawn  of 
the  twentieth  century.  As  early  as  1536  Andreas  Gail  or 
Gayll  published  at  Amsterdam  his  Practicarum  Observationum 
Libri  duo.  Four  years  before  his  death  in  1587  was  born  at 
Delft  Hugo  Grotius  (Huig  van  Groot),  whose  Introduction  to 
Dutch  Jurisprudence  (written  in  1620  and  published  in  1631) 
was  the  first  concise  account  of  Roman  law  as  it  stood  in  his 

1  "Thus  the  Roman-Dutch  law  as  applied  in  the  colony  of  British  Guiana  is 
the  law  as  it  existed  in  that  colony  at  the  time  of  its  cession  in  1814.  Any 
subsequent  changes  in  legislation,  whether  made  by  the  Crown  in  Council,  by 
the  Governor  on  the  advice  of  the  Executive  Council,  or  by  the  Court  of  Policy, 
though  they  may  change,  modify,  or  repeal  provisions  of  Roman-Dutch  law, 
do  not  constitute  Roman-Dutch  law,  but  British  Guiana  law."  Nathan, 
Common  Law  of  South  Africa,  i.  6.  See  also  pp.  2-5. 


ROMAN  AND  ENGLISH  LAW  COMBINED  493 

day.  The  De  Jure  Belli  ac  Pads,  written  in  1623-1624,  was 
published  in  1625.  In  that  year  was  born  Simon  van  Lee-  Van 
uwen  (ranked  by  Chief  Justice  Kotze"  next  after  Grotius),  Leeuwen- 
who  published  in  1662  an  edition  of  the  Corpus  Juris,  with 
annotations  founded  on  the  Corpus  Juris  Civilis  of  Dionysius 
Grothofredus,  and  in  1678  his  Commentaries  on  Roman- 
Dutch  Law.  Paul  Voet,  who  was  born  in  1619,  published  in  Paul  Voet. 
1661  his  most  important  work  (De  statutis  eorumque  concursu), 
the  precursor  of  modern  treatises  on  international  private 
law.  In  1647  was  born  at  Utrecht  his  son,  John  Voet,  for  johnVoet. 
whose  great  achievements  Grotius,  Van  Leeuwen,  and  the 
earliest  jurists  had  paved  the  way.  In  1670  appeared  his 
treatise  on  Military  Law  (De  jure  militari),  and  in  1673  his 
essay  on  the  Division  of  Inheritances  (Defamilia  erciscunda). 
After  1681  he  passed  from  the  University  of  Utrecht  to  that 
of  Leyden,  where  he  delivered  luminous  expositions  of  Roman 
law,  combined  with  statements  of  the  Dutch  customary  law, 
and  with  definitions  of  the  extent  to  which  the  two  systems 
had  acted  and  reacted  upon  each  other.  In  1698  appeared 
the  work  that  placed  him  at  the  head  of  the  Continental  ex- 
positors of  jurisprudence,  entitled  Commentarius  ad  Pan- 
dectas,  with  the  subtitle  In  quo  praeter  Romani  juris  principia 
ac  controversias  illustriores,  jus  etiam  hodiernum,  et  praecipuae 
fori  quaestiones  excutiuntur.  These  commentaries  are  valu- 
able, not  merely  as  an  exposition  of  Roman-Dutch  law,  but 
as  a  discussion  of  the  principles  of  jurisprudence  in  general, 
and  of  Roman  law  in  particular.  The  last  of  the  distinctively 
Roman-Dutch  law  writers  in  Holland  was  Joannes  van  der  Vander 
Linden,  who  published  in  1794  his  Verhandeling  over  de  Judi- 
cieele  Practijcque;  in  1803,  his  Verzameling  van  merkwaardige 
gemjsden  der  gerechtshoven  in  Holland  (Collection  of  Impor- 
tant Decisions  of  the  Courts  of  Justice  of  Holland) ;  and  in 
1806,  his  celebrated  Rechtsgeleerdheid  Practicaal  en  Koopmans 
Handboek  (Institutes  of  the  Law  of  Holland),  still  recognized 


494 


THE  SCIENCE  OF  JURISPRUDENCE 


Dutch 
legislation 
after 
Napoleon. 


Roman 
law  in 
Scotland. 


Few 

Celtic 

survivals. 


Similarity 
of  Scotch 
and  English 
law  in 
fourteenth 
century. 

Regiam 
Majestatem. 


as  the  best  elementary  treatise  on  Roman-Dutch  law.  Dur- 
ing the  Napoleonic  occupation  of  the  Netherlands  were  intro- 
duced the  codes  which  have  ever  since  governed  Holland  and 
Belgium.  The  importation  of  the  Roman-Dutch  law  into 
other  countries,  and  its  interpretation  there,  is  not  influ- 
enced by  Dutch  legislation  after  the  conquest  of  Holland  by 
Napoleon.  Thus  Roman-Dutch  law  is  interpreted  in  the 
colonies  only  by  Van  der  Linden  and  the  writers  before 
him,  just  as  English  law  is  interpreted  in  the  United  States 
only  by  the  English  jurists  who  flourished  prior  to  certain 
dates.1 

9.  The  same  general  causes  that  brought  about  the  intro- 
duction of  Roman  law  into  Holland  and  other  Continental 
countries  brought  about  its  introduction  into  Scotland,  whose 
early  law,  down  to  the  fourteenth  century,  was  in  a  general 
way  composed  of  the  same  elements  and  subject  to  the  same 
influences  as  the  law  south  of  the  Tweed.  As  the  popula- 
tion of  Scotland  was  chiefly  drawn,  except  in  the  central  and 
western  highlands,  from  Teutonic  sources,  though  with  a 
considerable  admixture  of  Celtic  blood,  the  laws  and  insti- 
tutions of  the  people,  like  their  language,  were  fundamentally 
English.  As  in  England,  Celtic  law,  which  seems  to  have 
disappeared  at  an  early  date,  left  behind  it  but  few  traces. 
While  the  Norman  element  in  the  population  was  never  large, 
the  law  of  unconquered  Scotland  was  deeply  influenced  by 
Norman  law  through  the  adoption  of  the  feudal  system  as 
developed  by  the  Normans.  Though  probably  more  hetero- 
geneous and  less  systematized,  the  law  of  Scotland,  in  the 
fourteenth  century,  was  substantially  the  same  as  the  law  of 
England,  a  conclusion  sustained  by  the  fact  that  the  compiler 
of  the  Regiam  Majestatem,  the  earliest  treatise  on  Scotch  law, 
simply  adopted  with  a  few  alterations  the  treatise  of  Glanvill 

1  See  also  George  T.  Morice,  English  and  Roman-Dutch  Law,  Oxford,  1903 ; 
Bell  and  Nathan,  Legal  Hand  Book  of  British  South  Africa,  Grahamston,  1905 ; 
Van  Zyl,  The  Judicial  Practice  of  South  Africa,  London  and  Cape  Town,  1902. 


ROMAN  AND  ENGLISH  LAW  COMBINED  495 

on  the  law  of  England.1  The  Regiam  Majestatem,  carefully 
collated  with  GlanvilTs  work  in  the  Acts  of  the  Parliament  of 
Scotland  (vol.  I.),  was  accepted  as  an  authoritative  statement 
of  the  law  of  Scotland  and  maintained  its  authority  until  the 
reception  of  Roman  law  in  the  form  of  the  Corpus  Juris. 
From  the  beginning  of  the  fourteenth  century  down  to  the  New 
sixteenth  new  influences  began  to  work  which  were  rather 
Continental  than  English.  During  that  period,  as  the  leading 
statesmen  and  jurists  were  ecclesiastics,  ideas  and  phrase- 
ology drawn  from  Roman  sources  filtered  into  Scotch  law 
from  the  canon  law  as  well  as  from  certain  of  the  Continental 
systems.  At  that  time  the  consistorial  courts  of  the  bishops 
had  an  extensive  jurisdiction  that  embraced  not  only  the  law 
regulating  the  domestic  relations,  but  also  contract  and  suc- 
cession. Such  was  the  prelude  to  the  great  change  that 
took  place  in  the  sixteenth  century  when,  with  the  revival  of 
letters,  Roman  law  began  to  come  in  like  a  flood,  and  to  Roman  law 


affect  fundamentally  the  entire  structure  of  the  law  of  Scot- 


land.    The  rapid  change  thus  brought  about,  neither  by  legis- 
lative  enactments  nor  by  popular  movement,  is  intimately 
associated  with  the  reorganization  of  the  courts,  whereby  the 
judicial  power  passed  from  the  territorial  magnates  into  the 
hands  of  trained  jurists,  lay  and  clerical.     Prior  to  that  event  Weakness 
the  chief  secular  legal  tribunals  —  the  Parliamentary  Com-  courts^ 
mittee  of  the  Lords  Auditors  and  the  Judicial  Committee  of 
the  King's  Council  —  were  too  weak,  and  the  local  courts  in 
which  the  barons  and  their  deputies  presided  were  too  arbi- 
trary and  independent,  to  lay  the  foundation  of  any  strong 
system  of  general  law,  outside  of  the  departments  admin- 
istered by  the  consistorial  courts.    The  remedy  was  found  Centraii- 
in  the  centralization  of  justice  brought  about  in  1532  by  the    ug|°cne^ 


creation  by  statute  of  the  Court  of  Session,  in  which  one  half  ?ou^t  of 

Session. 

of  the  regular  judges  were  laymen  trained  in  the  law,  and  the 

1  Erskine,  Principles  of  the  Law  of  Scotland,  19th  ed.  (Rankine),  p.  5. 


496 


THE  SCIENCE  OF  JURISPRUDENCE 


Skene's 
complaint. 


Roman  law 
as  "the 
common 
law." 


Recognized 
in  Treaty 
of  Union. 


other  half  clerics.1  From  the  scanty  fragments  of  native  law 
the  newly  born  legal  profession  naturally  turned  to  the  prin- 
ciples of  Roman  law  already  dominant  in  the  Continental 
universities  wherein,  notably  at  Paris,  Scotch  colleges  were 
founded.*  Toward  the  end  of  the  sixteenth  century  Sir 
John  Skene,  the  collector  of  Regiam  Majestatem,  complained 
that  "those  who  are  in  daily  practice  in  the  courts  consume 
their  days  and  nights  in  learning  the  civil  law  of  the  Romans, 
and  give  their  whole  labors  to  the  practicing  of  it;  and  — 
neglecting  the  laws  of  their  fathers  —  hold  in  no  esteem  the 
law  of  Scotland,  which  ought  to  be  their  first  care."  After 
the  Reformation  the  canon  law  was  discredited  by  a  statute 
rescinding  such  of  its  provisions  as  were  repugnant  to  Prot- 
estant doctrine.3  With  its  one  rival  thus  disabled  the  tri- 
umph of  the  Roman  civil  law  was  so  complete  that  it  was 
often  referred  to  as  "the  common  law"  in  the  statutes.4  It 
permeated  the  law  literature  of  the  sixteenth,  seventeenth,  and 
eighteenth  centuries;  it  is  the  dominating  influence  in  the 
works  of  Sir  George  Mackenzie,  Lord  Bankton,  Lord  Stair, 
and  Mr.  Erskine ;  no  one  can  be  admitted  to  the  Faculty  of 
Advocates,  a  body  from  which  the  judges  of  the  Supreme 
Court  are  usually  selected,  without  undergoing  an  examina- 
tion in  both  systems.  By  an  express  article  of  the  Treaty 
of  Union,  no  one,  not  an  advocate,  can  be  appointed  judge 
of  the  Court  of  Session  without  passing  an  examination  in 
Roman  law.  No  more  conclusive  evidence  is  to  be  found 

1  Originally  seven  churchmen,   seven  laymen,   and  a  president,   whom  it 
behooved  to  be  a  prelate. 

*  "The  Reformation,  and  the  leading  part  taken  in  it  by  Dutch  divines,  had 
attracted  many  Scotch  students  to  Holland.     They,  on  their  return,  carried 
with  them  the  works  of  Voet,  which  Scotch  lawyers  soon  came  to  regard  as 
having  great  weight  in  interpreting  the  principles  of  Roman  law.  .  .  .     Voet 
is  still  a  leading  authority  in  the  Scotch  Courts."     Nathan,  Common  Law  of 
South  Africa,  i.  19. 

*  From  that  time  the  canon  law  has  been  little  respected,  except  in  questions 
of  tithes,  patronages,  and  some  few  more  articles  of  ecclesiastical  right. 

«1640,  c.  69;   1585,  c.  18;   1540,  c.  80;   1551,  c.  22. 


ROMAN  AND  ENGLISH  LAW  COMBINED  497 

of  the  extent  to  which  Roman  law  has  molded  that  of  Scot- 
land than  such  as  is  contained  in  Morrison's  Dictionary  of 
Decisions.1     And  yet  the  fact  must  be  noted  that  from  the 
commencement  of  the  Court  of  Session  —  Scotland  in  this 
respect  following  the  practice  of  England  rather  than  of  the 
Continent  —  the  judgments  of  that  tribunal  have  been  recog-  Force  of 
nized  as  authoritative  precedents.    Thus  Scotch  law,  though  F 
constructed  in  the  main  of  Roman  materials,  has  gradually 
acquired  an  independent  character  and  strength  of  its  own, 
which  is  enabling  it  to  solve  most  questions  without   the 
necessity  of  a  direct  recourse  to  the  Corpus  Juris.     During  English 
the  nineteenth  century  a  decided  tendency  manifested  itself 
to  substitute  the  influence  of  English  law  for  that  of  Roman,  century- 
especially  in  cases  on  commercial  law  and  on  questions  of 
interpretation,  through  a  resort  to  the  analogies  supplied  by 
the  law  of  England,  and  to  the  precedents  supplied  by  the 
English  court  of  equity. 

1  In  the  Court  of  Session,  27  vols.  (1532-1816). 


2K 


PAKT  II 
ANALYTICAL 


CHAPTER   VII 

LAW  PROPER  OR  STATE   LAW 

1.  A  deliberate  effort  has  now  been  made  to  unfold  by  the  Law  proper 
Historical  Method  the  processes  through  which  the  aggre-  defined!  ' 
gate,  generally  known  as  government  and  law,  emerged  from 
progressive  history  in  those  nations  which  have  made  the 
deepest  impress  upon  civilization.  The  task  remains  so  to 
analyze  that  aggregate  as  to  make  possible  a  classification 
and  definition  of  the  elements  that  compose  it.  Nothing  is 
more  misleading  or  unfruitful  than  attempts  to  elaborate  by 
an  a  priori  process  the  inherent  nature  of  rights  and  law,  while 
rejecting  the  fact  that  political  and  legal  institutions  can  best 
be  studied,  not  as  arbitrary  or  imaginary  combinations,  but 
rather  as  belonging  to  societies  of  definite  historical  types. 
Until  we  first  ascertain  how  government  and  law  grew,  it  is 
impossible  to  understand  what  it  is.  As  this  work  rests  upon 
the  assumption  that  the  Science  of  Jurisprudence  is  con- 
cerned  only  with  positive  law,  or  with  law  strictly  so  called, 
an  effort  was  made  at  the  outset  to  mark  the  boundary  line  ™th  P081- 

tive  law. 

that  divides  that  kind  of  law  from  the  mass  of  things  to  which 
common  speech  gives  the  name  of  law,  —  such  as  the  so- 
called  laws  of  fashion,  of  honor,  of  morality,  and  of  nature;  or 
such  rules  as  are  imposed,  or  supposed  to  be  imposed,  by  God 
or  Gods,  and  generally  known  as  divine  laws.  "Positive 
[laws]  are  those  which  have  not  been  from  eternity;  but 
have  been  made  Lawes  by  the  Will  of  those  that  have  had  the 
Sovereign  power  over  others."  *  Or  to  pass  from  Hobbes  to  definition. 

1  Leviathan,  p.  148. 
501 


502 


THE  SCIENCE  OF  JURISPRUDENCE 


Austin's. 


The  word 
"com- 
mand 
key. 


the 


State  as 
ultimate 
source  of 
law. 


Law  proper 
should  be 
termed 
state  law 
rather  than 
municipal. 


Austin:  "The  matter  of  jurisprudence  is  positive  law:  law 
simply  and  strictly  so  called :  or  law  set  by  political  superiors 
to  political  inferiors."1  Every  positive  law  is  "set  by  a 
sovereign  person  or  sovereign  body  of  persons,  to  a  mem- 
ber or  members  of  the  independent  political  society  wherein 
that  person  or  body  is  sovereign  or  superior."  The  word 
"command"  is  the  key  to  such  an  analysis  of  law.  A  law 
properly  so  called  is  a  "command"  from  a  sovereign,  an  or- 
der issued  by  a  superior  to  an  inferior,  and  "the  party  to 
whom  it  is  directed  is  liable  to  evil  from  the  other,  in  case  he 
comply  not  with  the  desire."  The  most  striking  quality  of 
law  proper  is  its  coercive  character.  Thus  we  arrive  at  the 
conclusions:  (1)  that  the  sovereign  authority  of  the  state  is 
the  ultimate  source  of  all  laws  and  legal  institutions  as  they 
exist;  (2)  that  a  positive  law,  or  a  law  properly  so  called,  is 
a  general  rule  of  external  human  action  enforced  by  such  a 
sovereign  political  authority.  No  matter  what  the  source  or 
quality  of  such  a  law  may  be,  whether  statutory,  judge-made, 
or  customary,  if  it  is  a  general  rule  of  external  human  action 
enforced  by  a  sovereign  political  authority  known  as  the 
state,  it  is  a  law  properly  so  called.  Law  proper  should 
therefore  be  termed  state  law  rather  than  municipal  for  the 
reason  that  that  term  has  lost  its  original  meaning  with  the 
extinction  of  the  city-state  system  out  of  which  it  arose. 
Blackstone,  who  did  much  to  fasten  that  misleading  term 
upon  the  English-speaking  world,  makes  this  apology  for  its 
use:  "I  call  it  municipal  law,  in  compliance  with  common 
speech;  for,  though  strictly  that  expression  denotes  the 
particular  customs  of  one  single  municipium,  or  free  town,  yet 
it  may  with  sufficient  propriety  be  applied  to  any  one  state 
or  nation  which  is  governed  by  the  same  laws  and  customs."  2 
Commenting  on  that  statement,  Bentham  has  said,  "The  term 


1  "The  Province  of  Jurisprudence  Determined,"  lecture  1. 
»  Comm.  Int.,  §  2. 


LAW  PROPER   OR  STATE  LAW  503 

municipal  [for  local  or  provincial  law]  seems  to  answer  the 
purpose  very  well  till  it  was  taken  by  an  English  author  of 
the  first  eminence  to  signify  internal  law  in  general,  in  con- 
tradistinction to  international  law,  and  the  imaginary  law 
of  nature."  1    All  confusion  vanishes  the  moment  the  term 
"municipal  law"  is  confined  to  its  proper  domain  as  a  descrip- 
tion of  the  local  or  provincial  law  of  a  state  as  contradistin-  HOW  the 
guished  from  its  general  law,  which  should  be  known  by  its  gh 
real  name  —  state  law.     In  states  as  now  organized  the  term  lirmted- 
"municipal  law"  should  be  confined  to  the  local   codes   of 
town  or  city  corporations. 

2.    If  it  be  true  that  law  proper  is  such  only  when  it  is  The  state 
enforcible    as    a    command  emanating  from  the  corporate  Internal 
person  of  the  state,  acting  through  that  organ  in  which  the  sovereignty, 
sovereign  power  is  vested,  it  follows  that  the  state,  as  a  living 
and  growing  organism,  should  be  so  analyzed  by  the  jurist 
as  to  lay  bare  all  of  its  organs  and  their  functions.    The 
process  has  been  drawn  out  already  through  which  the  an- 
cient conception  of  the  state  as  the  city-commonwealth  was 
superseded  by  the  modern  conception  of  the  state  as  the 
nation,  occupying  a  definite  area  of  territory  with  fixed  geo- 
graphical  boundaries,  —  the  state  as  known  to  that  set  of 
understandings  now  called  international  law.2    The  normal 
international  corporate  person,  recognized  as  a  member  of 
the  family  of  nations,  enjoys  full  external  sovereignty.    The  internal 
international  system  rests  upon  two  assumptions:   first,  that  sovereignty 
each  state  is  sovereign  and  independent,  and  as  such  coequal  contrasted- 
with  all  the  rest;   second,  that  territory  and  jurisdiction  are 
coextensive.3    In  that  way  every  state  possesses  two  kinds 
of  sovereignty :  first,  an  external  sovereignty  consisting  of  its 
right  as  an  independent  political  community  to  deal  with  all 
others  of  its  class  upon  equal  terms  under  the  rules  of  inter- 

1  Introduction  to  Morals  and  Legislation,  xvii.  26,  n. 

*  See  above,  pp.  17  sq. 

*  Taylor,  International  Public  Law,  pp.  157,  197. 


504 


THE  SCIENCE  OF  JURISPRUDENCE 


The  state 
defined. 


Bentham 
and  the 
modern 
English 
theory. 


Constitu- 
tions of 
single 
states  as 
defined  by 
Greek  phi- 
losophers. 


national  law  (droit  public  externe);  second,  an  internal  sov- 
ereignty, inherent  in  the  people  as  a  whole,  whose  exercise 
is  vested  in  its  rulers  by  virtue  of  its  constitutional  law  (droit 
public  interne).  While  dealing  with  the  internal  sovereignty 
of  a  state,  it  is  convenient  to  forget  that  it  has  any  other;  it 
should  then  be  regarded  as  an  isolated  unit,  and  not  as  a 
member  of  the  family  of  nations.  When  thus  viewed  it 
appears  as  a  permanent  association  of  men,  existing  for 
definite  ends,  and  so  organized  that  there  is  a  reciprocity  of 
function  and  a  mutual  relation  of  all  the  parts  to  each  other 
and  to  the  whole.  It  bears  a  fixed  relation  to  a  definite 
portion  of  the  earth's  surface  known  as  its  territory,  with 
ascertained  geographical  limits.  It  is  "self-conscious  as 
exhibited  in  such  phenomena  as  patriotism,  antiquarianism, 
conservatism,  and  in  a  general  reverence  for  the  past  tradi- 
tions of  the  community  as  an  organic  whole,  as  well  as  in  an 
onward  looking  toward  the  future."  *  Bentham,  who  after  a 
long  interval  took  up  the  theory  of  sovereignty  where  Hobbes 
had  left  it,  laid  the  foundation  of  the  modern  English  theory 
of  the  state  in  this  definition  of  political  society  as  it  appears 
in  his  Fragment  on  Government:2  "When  a  number  of  per- 
sons (whom  we  may  style  subjects)  are  supposed  to  be  in  the 
habit  of  paying  obedience  to  a  person,  or  an  assemblage  of 
persons,  of  a  known  and  certain  description  (whom  we  may 
call  governor  or  governors),  such  persons  altogether  (subjects 
and  governors)  are  said  to  be  in  a  state  of  political  society." 
When  the  state  is  thus  viewed,  the  vital  question  is  as  to  its 
form  of  government  as  embodied  in  its  constitution  and  its 
laws,  —  a  question  so  dealt  with  by  the  Greek  philosophers 
with  reference  to  single  states  as  to  leave  little  to  be  desired. 
If  a  state  may  be  compared  to  a  watch,  its  outer  shell  repre- 
sents the  state's  political  constitution  or  public  law,  while  its 

1  Amos,  A  Systematic  View  of  the  Science  of  Jurisprudence,  p.  72. 
3  A  small  book,  containing  all  his  leading  ideas,  which  appeared  in  1776. 
Cf.  Pollock,  History  of  the  Science  of  Politics,  pp.  96-99. 


LAW  PROPER   OR  STATE  LAW  505 

inner  mechanism  represents  the  state's  interior  code  or  pri- 

vate law.    The  division  of  all  state  law  into  public  and  pri-  Division  of 

vate,  recognized  by  the  Roman  jurists,  is  at  once  simple  and  i 


exhaustive.     No  matter  what  the  source  may  be  from  which  and  Prf- 

vate. 

law  is  derived;  no  matter  whether  it  be  customary,  judge- 
made,  statutory,  or  people-made,  in  the  form  of  a  written 
constitution,  it  is  classified  by  its  subject-matter  as  public 
or  private.  Not  until  after  the  state  is  formed  can  there  be 
law  in  the  strict  sense  of  the  term.  Then  it  is  that  such  rules  Legality 
as  receive  its  sanction  and  are  enforced  by  it  —  whether  a 
preexisting  body  of  customs  or  judge-made  and  statutory 
rules  subsequently  created  —  take  on  the  character  of  laws  by 
reason  of  their  recognition  by  the  state,  which  recognition 
may  be  given  tacitly  by  allowance,  or  expressly  through  the 
legislature  or  the  courts. 

3.    The  oldest  form  of  law  is  of  course  custom  or  usage  known  Three,  and 
at  Rome  as  jus  moribus  constitution,  and  in  England  as  "the  ^urces'oT' 
common  law,"  1  which  embodies  the  unwritten  but  well-known  law- 
opinions  of  the  community  as  to  social  right  and  wrong. 
Such  customary  rules  begin  as  a  spontaneous  evolution  from  origin  of 
the  popular  mind  which  commits,  at  the  outset,  their  enforce-  ^^^ 
ment  to  popular  opinion,  or  to  the  licensed  vengeance  of  in- 
jured   parties.     Such    primitive    and    imperfectly    executed 
morality  is  transformed  into  law  when,  after  the  organization 
of  the  state,  it  is  enforced  by  its  political  authority.    Thus 
custom  becomes  the  basis  of  state  law  when  it  satisfies  certain  when  it 
requirements,  and  remains  such  until  it  is  superseded   by 
judge-made  or  statutory  law.     In  dealing  with  the  evolution 
of  Roman  law,  the  process  was  drawn  out  through  which  the 
unwritten  customs  of  the  Roman  people  were  condensed  into  Customary 
the  rigid  formulas  known  as  the  Twelve  Tables,  subsequently         * 
expanded  and  adapted  to  the  ever  changing  wants  of  a  grow- 
ing  nationality  through  three  agencies,  —  legal  fictions,  equity, 

1  See  Maitland,  in  English  Historical  Review,  xi.  448. 


506 


THE  SCIENCE  OF  JURISPRUDENCE 


Its  affinity 
with  reli- 
gion and 
theology. 


Their  abid- 
ing influ- 
ence. 


or  judge-made  law,  and  statutory  legislation.  An  account 
was  then  given  of  the  almost  identical  process  as  it  was  re- 
peated, although  with  greater  difficulty,  in  England,  where,  as 
at  Rome,  there  was  a  clear  recognition  of  the  fact,  declared 
by  Justinian  in  his  Institutes,  that  "long-standing  customs, 
approved  by  the  consent  of  those  who  practiced  them,  take 
the  place  of  law."  l  Law,  which  everywhere  begins  with 
custom,  is  usually  found  in  close  affinity  with  religion  and 
theology  when  they  begin  to  emerge  from  the  superstitions 
of  the  savage  state,  and  when  custom,  already  settled,  and 
growing  more  complex  with  the  progress  of  culture,  has  enabled 
civil  society  to  organize  itself  into  institutions.  On  the  one 
hand,  to  take  vengeance  for  the  killing  of  a  near  relative  is 
the  duty  a  pious  son  or  brother  owes  to  the  ghost  of  the  slain  ; 
while,  on  the  other,  the  homicide  has  created  a  legal  right  the 
enforcement  of  which,  by  compelling  the  payment  of  the  usual 
compensation  to  be  exacted  of  the  slayer  or  his  family  group, 
will  also  satisfy  the  religious  obligation.2  As  conceived  of 
by  the  Greeks,  law  was  something  "to  which  all  men  ought 
to  yield  obedience  for  many  reasons,  and  especially  because 
every  law  is  a  discovery  and  gift  of  God,3  and  at  the  same  time 
a  decision  of  wise  men";  while  at  Rome  it  was  committed  at 
the  outset,  as  heretofore  pointed  out,  to  the  special  keeping 
of  the  pontifical  college.4  Thus  it  was  that  primitive  custom 
while  being  transformed  into  law  passed  through  the  filter 
beds  of  religion  and  theology,  whose  impress  was  profound 
and  abiding.  As  custom  or  usage  was  the  laboratory  in  which 
inchoate  law  was  manufactured  prior  to  the  organization  of  the 
state,  to  that  laboratory  we  must  look  for  the  special  group 
of  circumstances  through  which  any  particular  customary 

1  Inst.  1.  2.  9.       "  Diuturni   mores  consensu  utentium   comprobati    legem 
imitantur."     Cf.  Code,  8.  53.  3. 

*  Cf.  Bryce,  Studies  in  History  and  Jurisprudence,  p.  640. 

*  Demosthenes,  Adv.  Aristogeit.  (p.  774) ;   Dig.  1.  3.  2. 

*  See  above,  pp.  98  sq. 


LAW  PROPER   OR  STATE  LAW  607 

rule  was  prepared  for  adoption  as  positive  or  state  law. 
Thus  the  people  are  in  the  first  instance  the  direct  makers  of  The  people 
law;  it  is  an  aspect  of  the  total  common  life  of  the  nation;  ^ ^,ei 
the  people,  as  Savigny  has  expressed  it,  is  always  the  true 
legislator:  Das  Gesetz  ist  das  Organ  des  Volksrechts.  Law  is 
begotten  in  the  people  (volk)  by  the  popular  intelligence 
(Volksgeist).1  At  the  outset  the  people  speak  the  law.  In 
the  English  as  in  the  Frankish  hundredmoots  the  law  was 
declared,  not  by  any  judicial  officer,  but  by  the  whole  body 
of  freemen  present,  represented  in  later  times  by  the  Rachim- 
burgi,  the  Schoffen,  and  the  grand  jury.3 

The  German  theory  of  the  unconscious  creation  of  custom-  Recognition 
ary  rules  of  conduct,  which  come  into  existence,  bit  by  bit, 


as  the  natural  wants  of  mankind  demand  them,  must  be  tern-  bv  8tate 

authority. 

pered  by  the  fact  that  society  when  organized  as  the  state 
reserves  to  itself  the  right  to  continue  in  force  only  such  of 
them  as  it  deems  "reasonable,"  3  that  is,  adapted  to  its  cir- 
cumstances. Thus  as  civilization  advances  and  as  the  primi- 
tive rules  become  less  and  less  applicable  to  new  conditions, 
the  archaic  code  of  customary  law  loses  its  importance  rela- 
tively to  other  kinds  of  law.  When  the  old  rules  become  too 
narrow,  an  agency  must  be  found  which,  without  appearing 
to  disregard  them,  can  build  up  alongside  of  them  a  new  body 
of  rules  capable  of  supplementing  or  overriding  them.  In 
that  way  the  popular  conscience  is  superseded  by  the  judicial  Popular 
conscience  vested  in  the  magistrate  armed  by  the  state  with 
the  power  of  judicial  legislation.  Deliberate  consideration  has 

conscience. 

heretofore  been  given,  as  a  comparative  study,  to  the  two 

1  System,  i.  175,  177.  Apart  from  its  bodily  form,  the  state,  the  people  has, 
however,  no  actual  existence.  Ibid.  i.  22. 

>  Waitz,  iii.  487;  iv.  325 ;  Taylor,  The  Origin  and  Growth  of  the  English  Consti- 
tution, i.  304.  How  near  the  system  of  delegation  as  practiced  in  the  English 
popular  courts  ever  approached  the  Frankish  Schoffen  system  is  a  question 
which  has  been  often  suggested  but  never  distinctly  answered.  Cf.  North 
American  Review,  July,  1874,  ccxliv.  243. 

*  "Malus  usus  est  abolendua."    Co.  Litt.,  a.  212. 


508 


THE  SCIENCE  OF  JURISPRUDENCE 


The  praetor 
and  the 
perpetual 
edict. 


Jus  hono- 
rarium the 
pupil  of  jus 
civile. 


The  chan- 
cellor and 
his  equita- 
ble juris- 
diction. 


great  historical  illustrations  of  that  process  as  worked  out  by 
the  praetor  at  Rome  and  by  the  chancellor  in  England. 
While  the  former  was  without  any  express  authority  to  legis- 
late he  exerted,  during  his  year  of  office,  a  power  over  all 
judicial  process  which  finally  became  almost  unlimited.  In 
the  perpetual  edict  he  gave  notice,  upon  entering  upon  his 
term,  of  the  modes  in  which  he  purposed  to  give  relief  against 
the  inconveniences  of  the  established  system,  which  was 
treated  with  the  greatest  deference.  It  remained  as  a  stand- 
ard for  imitation.  The  jus  honorarium,  into  which  was  con- 
densed the  practical  devices  invented  by  the  praetor,  was  in 
theory  a  mere  pupil  of  the  older  jus  civile, — "equity  follows 
the  law,"  —  "jus  praetorium,  quod  jus  civile  subsequitur."  l 
Or  as  Papinian  has  expressed  it,  "Jus  praetorium  est  quod 
praetores  introduxerunt  adjuvandi  vel  supplendi  vel  corrigendi 
juris  civilis  gratia  propter  utilitatem  publicam."  2  Thus  along- 
side of  the  archaic  system  was  built  up  at  Rome  a  set  of 
judge-made  rules  that  gave  an  effect  to  contracts  not  to  be 
found  in  the  limited  list  of  those  recognized  by  law,  and  to 
wills  neither  sanctioned  by  the  comitia  nor  solemnized  by  a 
sale  of  the  inheritance  with  copper  and  scales,  while  the  bene- 
fits of  succession  ab  intestate,  which  still  passed  by  law  to  the 
artificial  "agnatic"  group,  were  practically  secured  to  the 
blood  relations.3  To  the  English  chancellor,  as  keeper  of  the 
king's  conscience,  was  committed  that  undefined  residuum 
of  judicial  authority  attributed  in  early  times  to  an  English 
king.  From  that  source  was  drawn  the  chancellor's  equitable 
jurisdiction,  defined  to  be  "the  extraordinary  interference  of 
the  chancellor,  without  common  law  process,  or  regard  to 
common  law  rules  of  proceeding,  upon  the  petition  of  the 
party  aggrieved,  who  was  without  adequate  remedy  in  a 


1  Dig.  22.  5.  14.  *  Ibid.  1.  I.  7. 

'  "Naturali  acquit  ate    motus  proconsul  omnibus  cognatis   promittit   bono- 
rum  possessionem,  quos  sanguinia  ratio  vocat  ad  hereditatem. "     Dig.  38.  8.  2. 


LAW  PROPER   OR  STATE  LAW  509 

court  of  common  law."  *    In  exercising  that  power  Lord 
Cottenham  said :  "  I  think  it  is  the  duty  of  this  court  to  adapt  Cotten- 
its  practice  and  course  of  proceeding  to  the  existing  state  of 
society,  and  not,  by  too  strict  an  adherence,  to  decline  to  ad- 
minister justice,  and  to  enforce  rights  for  which  there  is  no 
other   remedy."2     Or,  in  the  words  of   Lord   Hardwicke:  Hardwicke. 
"When  the  court  finds  the  rules  of  law  right,  it  will  follow 
them,  but  then  it  will  likewise  go  beyond  them."  3    The 
English  chancellors  have  ever  recognized  in  theory  at  least  the 
maxim  that  "equity  follows  the  law ";  "the  conscience  [said 
Lord  Nottingham]  by  which  I  am  to  proceed  is  merely  civilis  Notting- 
et  politico,,  and  tied  to  certain  measures."  4    During  the  long 
term  of  Lord  Eldon  it  was  that  English  equity  became  a  body  Eidon. 
of  rules  scarcely  more  elastic  than  the  common  law,  —  a  con- 
dition reached  in  the  history  of  Roman  equity  when  in  the 
time  of  Hadrian  the  edicts  of  the  praetors  were  consolidated 
by  Salvius  Julianus.5    Out  of  that  body  of  English  equity 
rules  thus  created  arose  that  method  of  interference  with  the 
process  of  the  common  law  courts,  when  it  threatened  to 
work  injustice,  known  as  "injunctions";  and  that  vast  and 
complicated  system  of  trusts  peculiar  to  the  law  of  England, 
which  implies  nothing  more  than  the  recognition  of  certain 
new  rights  and  duties  beyond  and  above  those  defined  in  the 
older  legal  system,    Alongside  of  the  doctrine  of  bona  fides,  Doctrine  of 
as  defined  by  the  Roman  praetor,  may  be  set  that  of  "con-  &nd  "con- 
science" or  "equity"  as  entertained  by  the  English  chan- 
cellor.    Against  that  point  of  union  must  be  set,  however, 
the  difference  that  divides  the  praetorian  jurisdiction,  — 
exercised  in  one  court,  by  one  judge,  on  one  trial,  under  a 
single  system  of  procedure,  —  from  the  two  sets  of  courts  of 

1  Campbell,  Lives,  i.  7. 

2  Walworth  v.  Holt,  4  My.  and  Or.  635. 

3  Paget  v.  Gee,  Amb.  App.  810. 

«  Cook  v.  Fountain  (1676),  3  Swanst.  600;  Holland,  Jurisprudence,  pp.  69-71. 
*  Maine,  Ancient  Law,  ch.  iii. 


510 


THE  SCIENCE  OF  JURISPRUDENCE 


Unification 
of  English 
bifurcated 
system. 


A  more 
radical 
proposal. 


English 
judge 
limited  to 
concrete 
case. 


The  praetor 
spoke  gen- 
erally. 


Bound  by 

statutes. 


equal  dignity,  continuing  side  by  side  for  ages,  while  admin- 
istering different  legal  principles,  through  distinct  procedures, 
and  interfering  with  and  controlling  each  other's  free  move- 
ments. The  difficulties  and  inconveniences  incident  to  such 
a  bifurcated  system,  common  to  England  and  the  United 
States,  is  now  yielding  to  a  hopeful  process  of  unification  that 
proposes  not  only  to  allow  but  to  require  every  judge  in  every 
court  of  justice  to  recognize  the  rules  belonging  to  both  sys- 
tems, and  to  afford  to  suitors  the  most  appropriate  and  effi- 
cient remedies  offered  by  either  system  by  employing  the 
administrative  machinery  heretofore  assigned  to  either  court 
to  enforce  rights  owing  their  origin  to  either  one  or  the  other. 
A  more  radical  proposal  is  that  which  contemplates  the  ulti- 
mate fusion  of  the  two  systems  into  one  homogeneous  body 
of  law  completely  reconstructed  through  codification. 

In  the  English  system  the  judge  is  never  supposed  to  go 
beyond  the  concrete  case  before  him;  when  he  declares  the 
law,  it  is  by  passing  on  the  particular  question  that  has  arisen 
between  two  or  more  persons,  natural  or  artificial.  While 
he  may  incidentally  discourse  generally  on  the  law  touching 
the  pending  subject,  and  thus  throw  off  dictum,  it  is  only  the 
ratio  decidendi,  often  narrowed  down  to  a  very  fine  point,  that 
can  be  quoted  as  authority.  On  the  other  hand,  the  praetor 
spoke  generally  in  the  edict  issued  at  the  beginning  of  his 
term  in  which  he  laid  down  a  rule  intended  to  be  applicable 
to  a  large  class  of  cases.  While  the  Romans  said  the  praetor 
does  not  make  law  (praetor  jus  facere  non  potest),  they  called 
the  rules  that  emanated  from  him  jura,1  while  the  entire 
body  of  such  rules  was  known  in  later  times  as  jus  honora- 
rium, jus  praetorium.  Still  the  praetor  always  held  himself 
to  be  bound  by  statute;  and  when  a  particular  case  was  de- 
cided in  a  particular  way  under  a  provision  of  the  Edict, 
which  was  omitted  the  next  year,  it  could  not  be  disturbed, 


1  See  Cic.  De  Invent,  ii.  22. 


LAW  PROPER   OR  STATE  LAW  511 

as  the  Romans  held  firmly  at  the  outset  to  the  principle  of 
stare  judicatis.      Cicero  enumerates  res  judicatae  among  the  stare  j 
sources  of  law,1  and  in  the  interpretation  of  ambiguous  laws  ear^/Ro- 
the  Emperor  Severus  attributed  binding  force  to  the  rerum  manlaw- 
perpetuo  similiter  judicatarum  auctoritas*    A  contrary  prin- 
ciple was,  however,  established  by  a  Constitution  of  Justin.8  Constitution 
From  that  later  view  was  inherited  the  Continental  idea  that 
while  previous  decisions  are  instructive,  they  are  not  authori- 
tative, as  the  judgment  of  one  court  cannot  constrain  another 
to  adopt  the  same  view  in  a  similar  case.    The  Codes  of  Prussia 
and  Austria  go  so  far  as  to  provide  expressly  that  judgments 
shall  not  have  the  force  of  law.4    From  the  time  of  the  Year  Decided 
Books  decided  cases  have  been  cited  as  precedents  in  Eng-  precedents 
land ;  and  so  firmly  was  the  rule  settled  in  Blackstone's  time  l^d°8" 
that  he  declared,  "the  duty  of  the  judge  is  to  abide  by  former 
precedents."8    After  stating  that  the  English  courts  "are 
arranged  in  this  respect  in  a  regular  hierarchy,  those  of  each 
grade  being  bound  by  the  decisions  of  those  of  the  same  or  a 
higher  grade,  while  the  House  of  Lords  is  bound  by  its  own 
decisions,"  Holland  says,  "This  is  not  the  case  in  the  Privy 
Council,  or  in  the  Supreme  Court  of  the  United  States."'  in  the 
The  justices  of  that  court  would  no  doubt  stand  aghast  at  states, 
that  assertion,  as  its  decisions  do  not  permit  a  question  once 
fully  decided  in  a  former  case  even  to  be  reargued.     It  has 
declared  that  questions  repeatedly  before  it,  and  decided  in 
the  same  way,  are  not  open  for  readjudication.7    And  yet, 

1  Top.,  c.  5.  »  Dig.  1.  3.  38. 

*  "Nemo  judex  vel  arbiter  existimet  neque    consultationes  quas  non  rite 
judicatas  esse  putaverit  sequendum,  et  multo  magis  sententias  eminentis  simo- 
rum  praefectorum,  vel  aliorum  procerum ;    non  enim  si  quid  non   bene    diri- 
matur,  hoc  et  in  aliorum  judicum  vitium  extendi  oportet,  cum  non  exemplia 
sed  legibus  judicandum  sit."     Code,  7.  45.  13.     Cf.  Dig.  1.  18.  12. 

*  "Although  the  Codes  of  France,  Italy,  and  Belgium  are  silent  on  the  point, 
the  rule  in  all  these  countries  is  substantially  the  same."     Holland,  Jurispru- 
dence, p.  65  and  notes. 

*  1  Comm.  69.  •  Jurisprudence,  p.  66. 

7  Wright  v.  Sill,  2  Black  544 ;  Minnesota  Mining  Co.  v.  National  Mining 
Co.,  3  Wall.  332 ;  United  States  v.  422  Casks  of  Wine,  1  Pet.  547 ;  Florida  Cent. 
R.R.  Co.  v.  Schulte,  103  U.S.  118. 


512  THE  SCIENCE  OF  JURISPRUDENCE 

Difference  despite  such  announcements,  in  the  New  World  as  in  the  Old, 
theTiyand  theory  is  one  thing,  practice  quite  another.  The  old  Eng- 
practice.  jjg^  ficf;ion  was  that  the  judges  were  not  to  announce  any 
new  rules,  but  to  expound  old  ones  to  be  drawn  from  an 
imaginary  reservoir  in  which  they  were  supposed  to  have  been 
stored  from  the  beginning  of  time.  Austin  has  well  sneered 
at  "the  childish  fiction  employed  by  our  judges,  that  judiciary 
or  common  law  is  not  made  by  them,  but  is  a  miraculous  some- 
thing made  by  nobody;  existing  from  eternity  and  merely 
declared,  from  time  to  time,  by  the  judges."  l  Under  cover 
of  that  harmless  and  convenient  fiction  English  judges  have 
Judge-made  for  centuries  been  creating  new  rules  for  cases  not  previously 
England  provided  for.  Since  its  organization  the  Supreme  Court  of 
United6  ^e  United  States  has  been  extending  the  same  process,  on  a 
states.  far  wider  scale,  for  the  reason  that  the  demand  upon  it  for 
the  creation  of  new  rules  has  been  far  greater  than  upon  the 
courts  at  Westminster.  By  the  force  of  judicial  logic  alone, 
unaided  by  any  express  constitutional  provision,  it  estab- 
lished its  rights  to  put  the  stamp  of  nullity  upon  any  law 
deemed  by  it  to  be  in  conflict  with  the  national  constitution. 
Not  until  thirteen  years  after  its  organization  did  it  declare 
that  it  possessed  the  power  to  put  the  stamp  of  nullity  on  a 
national  law ; 2  not  until  twenty  years  after  its  organization 
did  it  actually  put  the  stamp  of  nullity  on  a  state  law.3  When 
by  the  application  of  steam  to  navigation  a  revolution  was 
wrought  in  the  commerce  of  the  country,  a  notable  legal 
result  of  the  change  was  a  substitution  for  the  ancient  English 
rule  of  admiralty  jurisdiction,  resting  on  the  ebb  and  flow  of 
the  tide,  of  a  new  one  better  adapted  to  totally  different 
physical  conditions.  In  Taney's  time  the  navigable  charac- 
ter of  the  water,  an  entirely  new  rule,  was  made  the  test ;  and 
thus  by  the  silent  stroke  of  the  judicial  pen  the  admiralty 

1  Lectures,  ii.  655. 

a  Marbury  v.  Madison  (1803),  1  Cranch  138. 

1  Fletcher  v.  Peck  (1810),  6  Cranch  87. 


LAW  PROPER   OR  STATE  LAW  513 

jurisdiction  of  the  federal  courts  was  extended  not  only  beyond 

the  ebb  and  flow  of  the  tide  in  all  public  navigable  waters, 

but  over  the  great  fresh-water  lakes  as  well,  inland  seas  upon 

which  fleets  have  encountered.1    With  these  facts,  so  emphat- 

ically illustrating  the  law  of  growth,  clearly  in  view,  it  is  easy 

to  understand  how,  through  the  agency  of  judicial  interpre- 

tation, supplemented  to  some  extent  by  statutory  legislation, 

the  jurisdiction  of  the  court  as  a  whole  has  been  developed  Deveiop- 

and  defined  while  being  applied  to  the  manifold  subjects  of 


federal  cognizance  upon  which  it  has  been  adjudicating  for  of  Supreme 

more  than  a  century.    When  the  intricacy  and  delicacy  of 

the  task  is  duly  considered,  nothing  can  be  more  apparent 

to  the  scientific  jurist  than  the  fact  that  it  could  only  have 

been  performed  through  the  agency  of  judge-made  law,  — 

that  agency  which  silently  expanded  and  adapted,  as  we  have 

seen,  the  primitive  and  unelastic  Codes  of  Rome  and  England, 

to  the  ever  increasing  wants  of  progressive  societies.    When 

viewed  in  the  light  of  its  history  as  illustrated  by  those  codes, 

there  is  no  reason  to  apprehend  that  that  kind  of  law  may 

eventually  undermine  the  constitution  of  the  American  com- 

monwealth.    On  the  contrary,  there  is  every  reason  to  believe 

that  without  the  adjusting,  defining,  and  expanding  power 

of  judge-made  law  it  would  have  been  impossible  to  adapt 

our  complicated  and  rigid  system  of  written  constitutions  to 

the  new  and  varied  conditions  that  have  so  rapidly  arisen  out 

of  an  unparalleled  national  development. 

The  fact  has  been  heretofore  emphasized  that  in  earlier  jurists  as 
times  the  jurists  were  the  makers  of  law,  as  they  were  the  private  law 
first  repositories  and  interpreters  of  those  customs  out  of 
which  law  grew.     Before  the  enactment  of  the  Twelve  Tables, 
and  even  down  to  the  third  century  B.C.,  a  small  patrician 
body,  some  of  them  jurists,  retained  in  their  memories  and 

1  The  Genesee  Chief  v.  Fitzhugh  (1851),  12  How.  443.     Cf.  Taylor,  Juri. 
and  Pro.  Supreme  Court  of  the  United  States,  pp.  iii-xxvii. 

2L 


514 


THE  SCIENCE  OF  JURISPRUDENCE 


Remedial 

equity 

everywhere 

older  than 

remedial 

legislation. 


Direct 

Roman 

legislation. 


transmitted  to  their  successors  customary  rules  and  maxims 
expressed  in  carefully  phrased  and  scrupulously  guarded 
formulas.  High  among  such  formulas  stood  the  rules, 
cherished  by  the  class  in  question  as  a  sacred  deposit  of 
political  as  well  as  religious  importance,  which  regulated  the 
bringing  of  actions  or  other  legal  proceedings,  the  slightest 
verbal  deviation  from  which  amounted  to  a  fatal  error.  Thus 
in  earlier  times  the  entire  domain  of  private  law  was  occupied 
by  the  jurists  who  were  the  molders  of  it.  As  heretofore 
pointed  out,  the  materials  of  the  human  heathen  Digest,  in 
which  Roman  private  law  was  embodied  and  which  has  sur- 
vived as  an  immortality,  were  fabricated  by  the  jurists  before 
Roman  life  was  seriously  affected  either  by  the  Christian 
religion  or  by  statutory  legislation.1  Such  legislation  was 
the  last  of  the  three  agencies  employed  at  Rome  to  expand 
and  adapt  the  archaic  code  to  the  ever  changing  condi- 
tions of  the  aftergrowth.  And  it  may  be  said  generally 
that  remedial  equity  was  everywhere  older  than  remedial 
legislation.  During  the  Roman  Republic  the  improve- 
ment of  ordinary  private  law  was  for  the  most  part  left 
to  the  praetor  and  the  jurists.  When  the  Roman  popular 
assemblies  died  out,  without  being  formally  abolished,  the 
power  of  direct  legislation  passed  to  the  senate,  which,  at  the 
very  moment  it  won  full  recognition  as  an  organ  of  legisla- 
tion, became  the  mere  tool  of  the  emperor  for  that  purpose. 
The  final  form  of  direct  Roman  legislation  is  that  of  imperial 
ordinance,  the  outcome  of  the  imperial  function  ascribed  in 
later  times  to  a  formal  transfer  made  to  the  emperor  by  the 
people  of  their  own  authority.2  It  was  legislation  of  that 
type  that  gave  to  the  Roman  law  the  shape  in  which  it 

1  See  above,  p.  144. 

*  Cf.  Just.,  Inst.  1.  2.  6;  cf.  Dig.  1.  4.  I.  The  emperor  did  not,  however, 
legislate  as  an  assignee  of  the  popular  power  of  legislation.  His  legislative 
function  sprang  from  his  authority  as  a  magistrate.  The  edicts  of  the  magis- 
trate were  the  real  prototypes  of  the  imperial  constitutions. 


LAW  PROPER   OR  STATE  LAW  515 

descended  to  the  modern  world  in  the  East  and  West.  The 
cmstitutio  generalis 1  represents  the  true  type  of  the  imperial 
law;  through  its  agency  the  ancient  traditional  law  (jus 
vetus)  was,  during  an  interval  of  over  two  centuries  (from 
Diocletian  and  Constantine  to  Justinian),  subjected  to  a 
continuous  process  of  refinement  at  the  hands  of  successive 
emperors  until  perfect  unity  and  harmony  prevailed.  When 
we  turn  from  Rome  to  England  we  find  that  the  earlier  sys- 
tem was  there  slowly  molded  through  usage  and  by  the 
courts  themselves,  —  the  functions  of  the  chancellor  like 
those  of  the  praetor  were  offspring  of  custom  and  not  of 
statute.  It  is  only  the  later  system,  built  up  out  of  the  cus- 
toms of  the  thirteenth  century,  that  has  been  seriously  affected  Direct  Eng- 
by  direct  legislation.  Not  until  the  latter  part  of  that  cen-  ^^ 
tury  did  the  English  Parliament  as  an  organ  of  legislation 
assume  its  final  form  under  Edward  I.,  whose  influence  on  a 
series  of  remarkable  legislative  enactments,  defining  and 
amending  the  common  law,  won  for  him  the  imposing  title 
of  the  English  Justinian.  But  long  before  the  organizing 
and  defining  hand  of  Edward  was  applied  to  the  task  of  re- 
ducing through  the  agency  of  direct  legislation  the  body  of 
the  customary  law,  as  modified  by  the  innovations  to  which 
the  Conquest  had  given  birth,  to  system  and  order,  two 
great  text  writers,  Glanvill 2  and  Bracton,  had  been  smooth-  Glanvill 
ing  the  path  before  him.  The  great  work  of  the  latter,  which 
even  in  Coke's  time  was  looked  to  as  the  highest  source  from 
which  a  knowledge  of  the  common  law  could  be  drawn,  is  a 
comprehensive  statement  of  the  whole  law  of  England  as  it 
stood  when  the  reign  of  Edward  I.  began.  Bracton's  won- 
derful familiarity  with  the  imperial  and  pontifical  jurispru- 

1  "  Constitutio  est  quod  imperator  conatituit." 

*  Tradat.ua  de  Legibus  et  C  onsuetudinibus  Regni  Angliae,  which  consists  of 
fourteen  books,  is  chiefly  a  treatise  on  the  forms  of  procedure  in  the  curia  regis. 
As  to  the  writ  process  in  the  time  of  Glanvill,  see  Bigelow,  Anglo-Norm.,  Intro- 
duction, p.  xxvi ;  Register  of  Original  Writs,  by  F.  W.  Maitland,  3  Harvard 
Law  Review,  107. 


516  THE  SCIENCE  OF  JURISPRUDENCE 

dence,  which  had  already  been  introduced  to  some  extent 
into  the  English  system  by  the  clerical  judges,  is  manifest 
not   only   from   his   frequent   quotations   from   the  Digest, 
Institutes,  and  Code  of  Justinian,  but  also  from  his  use  of 
maxims  and  definitions  drawn  from  Roman  sources.1    The 
tendency  thus  exhibited  by  Bracton  to  enrich  the  common  law 
by  principles  and  definitions   borrowed   from  the  revived 
Roman  jurisprudence  was  followed  by  Edward,  who  was 
careful    to  secure  the  services   of  the  civilian,   Francesco 
Accursi  of      Accursi   of  Bologna,  before  entering  upon  the  work  of  legis- 
lative reform.2    It  is  certainly  interesting  to  note  this  mani- 
festation of  Roman  influence  just  at    the  moment  when 
English  private  law  —  a  growth  of  ages   which   had   been 
systematized  somewhat  by  the  text  writers  and  the  judges  — 
was  for  the  first  time  touched  by  the  organizing  hand  of  a 
Roman  and  scientific  legislator     Except,  perhaps,  in  then*  brevity  the 
statutes        Roman  statutes  of  the  Republic  were  not  superior  to  the 
contrasted.    English  statutes  down  to  the  time  of  George  III.    The  two 
systems  moved  on  along  the  same  lines.    As  time  and  change 
went  on  the  two  bodies  of  law,  which  jurists,  magistrates,  and 
judges  had  built  up  out  of  materials  provided  by  custom, 
were  subjected,  as  occasion  required,  to  the  defining  and 
amending  hand   of  direct  legislation.     When  the  mass   of 
Codification  Roman  law,  old  and  new,  became  so  unwieldy  as  to  be  un- 
andin116       manageable,  a  remedy  was  found  in  codification,  a  process 
England.       rejected,   until   very   recent   years,   by   English   legislation. 
Something,  however,  was  accomplished  by  the  Judicature  Act 
of  1873,  whereby  the  doctrines  of  the  chancellors  were  adopted 
into  the  body  of  the  law  of  England,  as  the  work  of  the 

1  Cf.  Henricus  de  Bracton  und  sein  Verhaltniss  zum  Romischen  Rechte,  by 
Dr.  Carl  Giitenbock,  Berlin,  1862,  translated  by  Coxe,  Philadelphia,  1866. 

*  He  was  in  attendance  upon  the  Parliament  of  1276.  Statutes  of  the 
Realm,  i.  42.  "Francesco  was  in  attendance  on  Edward  at  Limoges  in  May, 
1274,  Foedera,  i.  511,  512."  Stubbs,  Constitutional  History,  ii.  107,  note  2. 
He  was  the  son  of  the  great  Accursi  of  Bologna,  who  was  the  writer  of  the 
glosses  on  the  civil  law. 


LAW  PROPER   OR  STATE  LAW  517 

praetors  was  finally  adopted  into  the  body  of  Roman  law  by 
the  legislation  of  Justinian.  And  an  attempt  has  been  made 
to  reduce  English  statute  law  —  more  bulky  and  more  unsci- 
entific in  form  than  Roman  at  the  time  Justinian  undertook 
to  rescue  it  from  chaos  —  into  a  more  manageable  mass, 
through  the  labors  of  the  Statute  Law  Commission,  lately 
superseded  by  the  Statute  Law  Committee,  under  whose 
auspices  a  general  revision  of  the  statutes  is  now  being  con- 
ducted.1 In  the  United  States  a  more  deliberate  effort  has 
been  made  to  subject  English  law,  with  the  amendments  it 
has  received  here,  to  codification.  In  nearly  all  of  the  states 
of  the  Union  carefully  prepared  codes  have  appeared  in  which  Codification 
is  restated,  on  the  Roman  plan,  in  titles,  chapters,  and  sec-  united 
tions,  the  entire  body  of  law  of  the  particular  state,  resting  states- 
everywhere,  except  in  Louisiana,  upon  an  English  basis.  The 
construction  of  the  manifold  sections  of  such  codes  constitutes 
a  large  part  of  the  judicial  work  of  the  supreme  courts  of  the 
several  states.  In  the  course  of  years  certain  sections  of 
special  importance  almost  disappear  under  the  mass  of  ad- 
judications to  which  they  give  rise.  When  at  stated  inter- 
vals a  code,  which  has  been  subjected  to  such  a  process  of 
construction,  is  revised,  the  judge-made  law  that  has  grown 
up  around  it  is  codified,  and  thus  reappears  as  statute  law. 
And  so  must  ever  go  on  the  process  of  growth  and  adaptation 
in  which  the  judge  has  the  last  word,  —  the  ancient  nucleus 
of  light  remains  unimpaired. 

From  what  had  now  been  said  it  appears  that  there  have  Difference 
never  been  but  three  sources  or  laboratories  in  which  law  has  fabrication0 
been  fabricated,  —  custom  or  usage,  judge-made  law,  and  ofa.rule 
statutory  legislation.     Over-refinement  may  create  artificial  adoption, 
subdivisions  until  the  catalogue  is  a  long  one,  but  all  such 
subdivisions  are  at  once  reducible  to  the  three  heads  named 

1  For  a  mass  of  historical  facts  and  acute  criticism  as  to  modern   English 
legislation,  see  Sir  C.  P.  Ilbert,  Legislative  Methods  and  Forms. 


518  THE  SCIENCE  OF  JURISPRUDENCE 

above.  And  here  it  is  all -important  to  keep  steadily  in  view 
the  fact  that  the  fabrication  of  a  rule  is  one  thing,  its  adop- 
tion by  the  state  quite  another.  Austin  has  well  said  that 
while  usage  may  make  rules,  it  cannot,  without  obtaining  for 
them  the  recognition  of  the  state,  make  laws.  According  to 
state  recog-  his  view  the  state's  recognition  must  be  dated  from  the  mo- 
custom.  a  ment  that  the  usage  has  been  called  in  question  and  allowed 
to  be  good  in  a  court  of  justice.  In  criticising  the  soundness 
of  that  view,  Holland  justly  contends  that  when  a  given  set 
of  circumstances  is  brought  by  the  court  within  the  opera- 
tion of  a  custom,  the  court  appeals  to  that  custom  as  it  might 
to  any  other  preexisting  law,  and  thus  decides  as  a  fact  that 
there  exists  a  legal  custom,  about  which  there  might  up  to 
that  moment  have  been  some  question.  The  court  does  not, 
proprio  motu,  then  for  the  first  time  make  that  custom  a  law, 
for  the  reason  that  from  its  organization  the  state,  by  express 
or  tacit  recognition,  adopts  as  laws,  not  only  the  rules  of  equity 
but  the  entire  body  of  customs  that  come  up  to  a  certain 
standard  of  general  reception  and  usefulness,  in  the  absence 
of  any  specific  rule  of  written  law.  It  must  not  be  assumed, 
however,  that  a  custom  by  being  molded  into  a  code  is  in- 
capable of  further  growth ;  it  may  still  be  susceptible  of  even 
rapid  modification.1  It  may  be  laid  down  as  a  general  rule 
A  state  has  that  the  state  has  but  two  articulate  organs  for  law-creating 
articulate  purposes,  —  the  courts  and  the  legislature.  Through  the 
legislation  action  of  the  first  it  attests  and  affirms  old  law,  while  amend- 
ing and  modifying  it  by  the  introduction  of  new  principles 
which  the  judges  are  continually  fabricating,  and  which  have 
the  force  of  law  from  the  time  of  their  formal  announcement. 
Through  the  action  of  the  second  it  makes  new  law,  fabricated 

1  In  Goodwin  v.  Robarts,  L.R.  10  Ex.  337,  the  "custom  of  merchants,"  once 
supposed  to  be  incapable  of  further  growth,  was  recognized  as  being  sus- 
ceptible of  even  rapid  modification.  In  Edelstein  v.  Schuler  &  Co.,  2  K.B. 
144,  it  was  said  that  "the  law  merchant  is  not  fixed  and  stereotyped.  It  has 
not  been  arrested  in  its  growth  by  being  molded  into  a  code."  Holland, 
Jurisprudence,  pp.  58-60. 


LAW  PROPER   OR  STATE  LAW  519 

by  the  legislature  itself,  which  takes  effect  from  the  time 
fixed  by  general  constitutional  or  statutory  provision,  or  by 
the  terms  of  the  particular  act.  Statutory  legislation  may 
proceed  from  the  supreme  political  authority,  whether  an 
autocrat,  like  the  Roman  emperor  or  the  Russian  Czar,  or 
from  a  sovereign  parliament;  or  it  may  proceed  from  sub- 
ordinate legislatures  or  authorities  possessing  delegated  legis-  Subordinate 
lative  authority  whose  limits  cannot  be  exceeded.1 

4.  Before  attempting  to  define  either  the  immediate  or  Law  as  the 
remote  objects  of  law,  it  will  be  helpful  to  review  the  more 
important  statements  that  have  been  made  on  that  subject 
by  philosophers  and  jurists,  German  and  English.    Accord- 
ing to  Kant,  law  is  "the  totality  of  the  conditions  under  which  Kant, 
the  free  will  of  one  man  can  be  united  with  the  free  will  of 
another,  in  accordance  with  a  general  law  of  freedom";2 
according  to  Savigny,  it  is  "the  rule   that  determines  the  Savigny. 
invisible  limit  within  which  the  existence  and  activity  of  each 
individual  may  obtain  secure  and  free  play."  3    In  contrast 
with  that  purely  negative  conception,  which  makes  the  func- 
tion of  law  to  be  the  preservation  of  the  freedom  of  the  will 
from  interference,  must  be  placed  the  views  of  the  school,  Krauseand 
represented  by  Krause  *  and  Ahrens,5  who  contend  that  the 
human  race  can  only  realize  the  highest  good  of  which  it  is 
capable  when  the  pursuit  of  the  highest  good  of  the  individual 
and  society  is  regulated  and  controlled  by  law,  applied  by  the 
organization  we  call  the  state.     In  general  harmony  with  that 
idea  are  the  more  precise  and  simple  statements  of  Bacon8  and  Bacon  and 
Locke,7 — the  former  saying,  "Finis  ei  scopus  quern  leges 

1  As  to  the  relation  of  such  subordinate  legislative  bodies  to  the  courts  and 
to  the  supreme  legislature,  see  Bryce,  American  Commonwealth,  vol.  i.,  ch.  23 ; 
Dicey,    The  Law  of  the  Constitution,  ch.  3 ;   Cooley,  Constitutional  Limitations, 
ch.  viii. 

2  Rechtslehre,  Werke,  vii.  27.  *  System,  i.  114. 

*  Abriss  des  Systemes  der  Philosophic  des  Rechtes,  1828. 

*  Cours  de  droit  naturel,  1840.  a  De  Aug.,  lib.  viii.,  aph.  5. 
7  Of  Civil  Government,  i.,  §  57. 


520 


THE  SCIENCE  OF  JURISPRUDENCE 


intueri,  atque  ad  quern  jussiones  et  sanctiones  suas  dirigere 
debent,  non  alius  est  quam  ut  cives  feliciter  degant;  "  the  latter, 
"  Law,  in  its  true  notion,  is  not  so  much  the  limitation  as  the 
direction  of  a  free  and  intelligent  agent  to  his  proper  interest, 
and  prescribes  no  further  than  is  for  the  general  good  of  those 
under  the  law  ...  so  that,  however  it  may  be  mistaken, 
the  end  of  the  law  is,  not  to  abolish  or  restrain,  but  to  pre- 

Hobbes.  serve  and  enlarge  freedom."  Hobbes  *  in  his  crabbed  way 
says  that  "law  was  brought  into  the  world  for  nothing  else, 
but  to  limit  the  natural  liberty  of  particular  men,  in  such 
manner,  as  they  might  not  hurt,  but  assist  one  another,  and 

Bentham.  joyn  together  against  a  common  enemy";  while  Bentham  2 
declares,  "Of  the  substantive  branch  of  the  law  the  only 
defensible  object  or  end  in  view  is  the  maximization  of  the 
happiness  of  the  greatest  number  of  the  members  of  the  com- 
munity in  question."  As  all  such  definitions  of  law  presup- 
pose the  existence  of  the  state,  it  is  easy  to  understand 

Spencer.  Herbert  Spencer3  when  he  says,  "Thus  the  belief  in  an  un- 
changing order  —  the  belief  in  law,  now  spreading  among 
the  more  cultivated  throughout  the  civilized  world  —  is  a  belief 

Amos.  of  which  the  primitive  man  is  absolutely  incapable."  Amos 
has  well  said :  "  Now  the  existence  of  any  kind  of  government, 
even  of  the  most  inartificial  and  primitive,  involves  the 
presence  of  law  just  as  much  as  law  involves  that  of  govern- 
ment. Law  and  government  are  born  together,  grow  together, 
and  die  together."  4  After  disposing  of  the  ultimate  object 
of  law  with  the  declaration  that  it  "is  something  more  than 
police.  Its  ultimate  object  is  no  doubt  nothing  less  than 

Holland.  the  highest  well-being  of  society,"  Holland,  with  his  unerring 
insight,  touches  the  practical  side  of  the  question  when  he 
says:  "Jurisprudence  is  concerned  not  so  much  with  the 
purposes  which  law  subserves,  as  with  the  means  by  which  it 

1  Leviathan,  p.  138.          2  Works,  ii.  6.  8  Principles  of  Psychology,  §  488. 

•  A  Systematic  View  of  the  Science  of  Jurisprudence,  p.  2. 


LAW  PROPER   OR  STATE  LAW  521 

subserves  them.  The  purposes  of  law  are  its  remote  objects. 
The  means  by  which  it  effects  those  purposes  are  its  imme- 
diate objects.  The  immediate  objects  of  law  are  the  creation 
and  protection  of  legal  rights."  *  The  four  cardinal  con-  Four  cardi- 
ceptions  with  which  the  student  of  jurisprudence  has  ever  to 
deal  are  (1)  the  state;  (2)  law;  (3)  rights;  (4)  duties.  The 
state  may  be  defined  to  be  a  corporate  person,  constituted 
by  the  permanent  aggregation  of  an  indefinite  number  of 
human  beings,  occupying  a  definite  portion  of  the  earth's 
surface,  whose  internal  sovereignty  is  regulated  and  limited 
by  its  own  constitution,  while  its  external  sovereignty  is 
limited  by  international  law. 

As  the  sovereign  authority  of  the  state  is  the  ultimate  source  Positive 
of  all  laws  and  legal  institutions  as  they  exist,  positive  law,  defined, 
or  law  properly  so  called,  may  be  defined  to  be  a  general  rule 
of  external  human  action  enforced  by  such  a  sovereign  politi- 
cal authority,  with  the  immediate  object  of  creating  and  pro- 
tecting legal  rights. 

A  legal  right  thus  created  and  protected  may  be  defined  Legal  rights 
to  be  that  which  any  one  is  entitled  to  have  or  to  do,  or  to 
require  from  others,  within  the  limits  prescribed  by  law;  or, 
in  other  words,  a  right  is  a  legally  protected  interest.  That 
which  gives  validity  to  a  legal  right  is,  in  every  case,  the  force 
imparted  to  it  by  the  state.  Every  right  necessarily  presup- 
poses a  corresponding  duty  for  the  reason  that  it  implies  the 
active  or  passive  furtherance  by  others  of  the  wishes  of  the 
party  having  the  right.  The  capacity  of  control  over  the 
acts  of  another  person,  thus  given  by  state  law,  is  said  to  be 
a  right,  while  the  corresponding  liability  of  the  other  person 
to  have  his  acts  so  controlled  is  said  to  be  a  duty.  In  that  Legal  duties 

j-4      fi        r*j\ 

way  the  sphere  of  action  of  one  set  of  individuals  in  the  state 
is  enlarged  precisely  to  the  same  extent  that  that  of  another 
set  is  restricted.  If,  despite  every  consideration  of  moral 

1  Jurisprudence,  p.  77.     See  also  pp.  75-76. 


522 


THE  SCIENCE  OF  JURISPRUDENCE 


No  matter 
how  iniqui- 
tous a  posi- 
tive law 
may  be. 


Moral  and 
legal  rights 
distin- 
guished. 


Sommer- 
sett's  case. 


Mansfield's 
definition  of 
positive 
law. 


justice,  a  positive  law  gives  to  one  person  the  power  of  depriv- 
ing another  of  the  ownership  of  a  certain  piece  of  land,  the 
right  of  the  new  occupant  to  possession,  and  the  duty  of  the 
prior  occupant  to  yield  possession,  will  be  recognized  by 
every  court  having  jurisdiction  of  the  subject.  No  matter 
how  iniquitous  or  unpolitic  the  law  in  question  may  be,  the 
legal  right  vested  by  it  will  be  as  perfect  as  if  the  law  was  the 
product  of  the  highest  wisdom  and  justice,  and  any  one  inter- 
fering with  the  transfer  of  the  possession  under  it  will  be 
liable  to  penalties,  either  civil  or  criminal,  or  both.  It  is  all 
important  for  the  jurist  sharply  to  distinguish  between  a  legal 
right  or  capacity  vested  in  one  person  of  controlling,  with 
the  assent  and  assistance  of  the  state,  the  acts  of  others,  and 
a  moral  right  depending  entirely  for  its  enforcement  upon  the 
moral  coercion  of  public  opinion.  While  legal  rights  have 
the  objective  support  of  the  physical  power  of  the  state,  moral 
rights  have,  in  general,  only  a  subjective  support.  A  typical 
illustration  of  the  distinction  is  to  be  found  in  the  case  of  the 
negro  slave,  Sommersett,  who,  in  1771,  was  confined  in  irons 
on  board  of  a  ship  in  the  Thames  bound  for  Jamaica.  Stewart, 
who  claimed  to  be  his  master,  based  his  right  to  hold  him 
upon  the  theory  that  the  positive  law  of  England  recognized 
and  upheld  slavery.  Lord  Mansfield,  in  delivering  the  cap- 
tive, on  habeas  corpus,  said:  "The  state  of  slavery  is  of  such 
a  nature  that  it  is  incapable  of  being  introduced  on  any  rea- 
sons, moral  or  political,  but  only  by  positive  law,  which  pre- 
serves its  force  long  after  the  reasons,  occasion,  and  time 
itself  from  whence  it  was  created,  are  erased  from  memory. 
It  is  so  odious  that  nothing  can  be  suffered  to  support  it  but 
positive  law.  Whatever  inconveniences,  therefore,  may  fol- 
low upon  the  decision,  I  cannot  say  this  case  is  allowed  or 
approved  by  the  law  of  England;  and  therefore  the  black 
must  be  discharged."  *  The  moment  the  objective  support  of 

1  20  St.  Tr.  1 ;   12  Geo.  III.,  1771-1772.     Reported  as  Somerset  v.  Stewart, 
Lofft  1. 


LAW  PROPER   OR  STATE  LAW  523 

the  physical  power  of  the  state  was  thus  withdrawn  through 
the  judicial  ascertainment  that  slavery  was  not  upheld  by 
the  positive  law  of  England,  the  possibility  of  one  man  hold- 
ing another  in  bondage  ended.  In  the  light  of  what  has  now 
been  said  as  to  the  immediate  and  remote  objects  of  law 
the  statement  may  be  made  (1)  that  its  immediate  object  is 
the  creation  and  protection  of  rights;  (2)  that  it  defines  the 
rights  it  so  creates  and  protects;  (3)  that  it  specifies  the  "Substan- 
mode  in  which  it  will  aid  or  protect  them.  That  part  of  and  *ad- 
the  law  which  creates  or  defines  rights  is  "substantive  law";  j^1,™ 
that  part  which  aids  or  protects  them  is  "adjective  law,"  or 
procedure.  Clearly  marked  and  familiar  as  that  distinction 
is  to  the  modern  mind,  it  is  of  comparatively  recent  origin. 
In  early  stages  of  legal  growth  the  two  elements  are  insep- 
arable; indeed,  substantive  law  is  born  of  procedure,  being 
secreted,  as  has  been  said,  in  the  interstices  of  form,1  —  the 
very  term  "adjective  law"  was  first  used  by  Bentham. 
"  Bracton  has  fifty  times  as  much  on  actions  as  he  has  on  the 
law  of  persons,  and  it  is  under  this  head  that  we  must  search 
in  his  pages  for  much  of  what  we  now  call  substantive  law. 
The  close  association  thus  observed  between  pure  legal 
doctrine  and  matter  of  procedure  is  characteristic  of  all  early 
law."  2 

5.    Far  more  ancient,  and  certainly  more  radical,  is  the  Division  of 
division  of  law  into  public  and  private,  a  division  arising  intoPprivTte 
out  of  the  character  of  the  persons  with  whom  a  right  is  and  public- 
connected.    When  both  of  the  persons  with  whom  the  right  is 
connected  are  private  persons,  the  law  regulating  such  a  right 
is  "  private  "  law.    When  one  of  the  persons  with  whom  a  right 
is  connected  is  the  state  and  the  other  a  private  person,  the 
right  is  public,  and  the  law  regulating  such  a  right  is  "public" 
law.    That    comprehensive    division,    which    embraces    the 

1  Maine,  Early  Law  and  Custom,  p.  389. 

*  Street,  Foundations  of  Legal  Liability,  iii.  1. 


524 


THE  SCIENCE  OF  JURISPRUDENCE 


Roman 
jurists. 


Recognized  entire  field  of  law,  was  distinctly  recognized  by  Aristotle,  who, 
*  in  classifying  offenses  according  to  those  against  whom  they 
are  committed,  said  they  are  committed  either  against  the 
state  (TO  KOIVOV),  or  an  individual  (eva  roiv  KOLVCOVOVVTWV)  .* 
That  vitally  important  distinction  between  public  and  pri- 
vate persons  resulting,  through  the  severance  of  public  and 
private  rights,  in  the  opposition  between  public  and  private 

Restated  by  law,  was  seized  upon  and  restated  by  the  Romans,  from 
whom  it  was  borrowed  by  most  of  the  continental  nations  as 
the  fundamental  basis  of  legal  division.  In  the  words  of 
Ulpian,  adopted  by  Justinian,  "  Publicum  jus  est  quod  ad 
statum  rei  Romanae  special;  privatum  quod  ad  singulorum 
utilitatem  pertinet."  *  In  the  words  of  Paulus,  "  Alterum 
utilitas  privatorum,  alterum  vigor  publicae  desciplinae  pos- 
tulat." 8  Holland,  after  combating  in  a  masterful  way 
Austin's  attempt  to  divide  "primarily  the  whole  field  of  law 
into  the  law  'of  Persons'  and  that  'of  Things,'  subordinating 
to  the  law  of  Persons  the  mighty  cleavage  between  Public 
and  Private  law,"  thus  concludes:  "In  Private  law,  where 
all  the  characteristics  of  law  are  fully  present,  the  law  of  Per- 
sons is,  as  we  have  already  described,  a  statement  of  the  ways 
in  which  the  general  law  is  modified  by  varieties  of  status; 
while  the  law  of  Things  is  a  description  of  the  various  kinds 
of  rights  enjoyed  in  private  capacities  by  persons  as  being 
within  the  jurisdiction  of  a  State,  but  not  as  being  in  any  way 
representative  of  the  sovereign  power  in  the  State.  In  Public 
law,  which,  as  we  have  seen,  possesses  the  characteristics  of 
law  in  a  lower  degree  of  development,  the  distinction  is  but 
faintly  traceable.  What  is  analogous  to  the  law  of  Persons 
here  consists  in  a  description  of  the  state  as  a  whole,  of  its 
ruling  body,  of  bodies  or  persons  enjoying  delegated  ruling 


Holland's 
statement. 


1  Rhet.  i.,  c.  13.     An  assault  is  an  injury  to  an  individual ;  failure  to  perform 
military  service  is  an  injury  to  the  state. 

»  Dig.  1.  i.  1;   In*.  1.  1.  4.  •  Dig.  39.  iv.  9.  5;   cf.  Cod.  1.  2.  23. 


LAW  PROPER   OR  STATE  LAW  525 

power,  and  of  its  constituent  members  as  such;   in  short,  in 
what  is  usually  known  as  'constitutional'  law."1    According 
to  that  view,  herein  adopted  without  reservation,  "The  field 
of  law,  strictly  so  called,  may  be  thus  exhaustively  divided 
between  the  law  which  regulates  rights  between  subject  and 
subject  (civis  and  civis)  and  that  which  regulates  rights  be- 
tween the  state  and  its  subjects  (civitas  and  civis)."     The 
private  person  thus  referred  to  must  be  understood  to  be  an  Private 
individual,  or  a  collection  of  individuals  however  large,  who,  defined, 
or  each  one  of  whom,  is  of  course  a  unit  in  the  state,  but  in 
no  sense  a  representative  of  it,  even  for  a  special  purpose. 
The  public  person  thus  referred  to  must  be  understood  to  be  Public 
either  the  state,  or  the  sovereign  part  of  it,  or  a  body  or  in-  defined, 
dividual  holding  delegated  authority  under  it.     Upon  the 
basis  of  that  division  the  law  of  contracts,  of  real  and  personal  classifier- 
property,  of  wills  and  succession  and  of  torts  may  be  arranged 
in  one  group,  and  constitutional,  ecclesiastical,  criminal,  and 
administrative  law  in  another,  while  to  the  one  or  the  other 
every  possible  legal  topic  may  be  readily  assigned.    And 
here  the  fact  should  be  emphasized  that  the  same  act  may  Same  act 
often  violate  both  a  private  and  a  public  right.     A  libel  upon  iat<f  public 
an  individual  or  an  assault  is  a  violation  of  two  distinct  rights :  ^htPnVate 
first,  of  the  private  right  of  the  individual  to  be  unmolested; 
second,  of  the  public  right  of  the  state  not  to  be  disturbed  by 
acts  constituting,  or  tending  toward,  breaches  of  the  peace. 
The  same  set  of  circumstances  may  thus,  from  one  point  of 
view,  constitute  a  tort,  while  from  another  point  of  view  they 
may  constitute  a  crime.    The  unsound  and  superficial  view  Difference 

between  ft 

that  a  difference  between  a  tort  and  a  crime  is  simply  a  matter  tort  and  a 
of  procedure  is  exposed  by  Blackstone,2  who,  looking  deeper,  c 
says  that  torts  are  an  "infringement  or  privation  of  the  pri- 
vate, or  civil,  rights  belonging  to  individuals,  considered  as 

1  Jurisprudence,  pp.  124,  127,  138,  139. 

*  See  Quinn  v.  Leathern  (1901),  A.  C.,  at  p.  542. 


526 


THE  SCIENCE  OF  JURISPRUDENCE 


Private 

only 

typically 

perfect 

law. 


Sovereign  'a 
rights  and 
duties. 


In  English 
system. 


individuals;  crimes  are  a  breach  of  public  rights  and  duties 
which  affect  the  whole  community,  considered  as  a  com- 
munity." Or,  as  a  recent  American  writer,  in  distinguishing 
crimes  from  torts,  has  stated  it:  "First,  it  is  to  be  observed 
that  no  wrong  whatever  constitutes  a  tort  unless  the  common 
law  courts,  in  the  exercise  of  their  ordinary  powers,  have 
jurisdiction  to  entertain  a  civil  suit  for  damages  based  thereon. 
Neither  spiritual  offenses,  nor  crimes,  nor  violations  of  those 
equitable  rights  which  are  the  subject  of  exclusive  equity 
jurisdiction,  constitute  torts  in  the  sense  of  the  common  law."  1 
When  it  is  remembered  that  law  strictly  so  called  is  only 
such  law  as  is  enforced  by  the  political  arbiter  known  as  the 
state,  it  follows  that  private  law  is  in  the  strictest  sense  the 
only  typically  perfect  law,  because  both  the  parties  concerned 
in  its  enforcement  are  private  individuals,  above  and  between 
whom  the  state  stands  as  an  impartial  and  final  judge.  That 
perfect  conception  of  law  proper  is  somewhat  confused  when 
public  law  is  to  be  enforced  for  the  reason  that,  in  that  event, 
the  state  is  present  not  only  as  an  arbiter  but  as  one  of  the 
parties  interested,  directly  or  indirectly.  Here  the  power 
which  defines  and  protects  the  right  is  itself  a  party  interested 
in  or  affected  by  the  right.  It  cannot  be  denied  that  the 
sovereign  may  be  clothed  with  a  right 2  when  we  look  to  the 
form  of  an  indictment  which  in  England  runs,  "The  King  on 
the  prosecution  of  A.  B.  against  C.  D." ;  in  the  United  States, 
"The  state  (or  the  People)  against  E.  F."  And  in  the  same 
way  in  which  the  state  possesses  rights,  it  is  also  charged 
with  duties  which  it  may  either  repudiate,  or  enforce  accord- 
ing to  legal  forms  and  definitions  it  voluntarily  prescribes  or 
recognizes.8  In  England  such  duties  are  usually  enforced 

1  Street,  Foundations  of  Legal  Liability,  i.  xxviii. 

2  "Inter   eubditos    et    Rempublicam   obligationes    non    minus    quam   inter 
homines  singulos  contingunt."     Zouche,  Elementa  Jurisprudeniiae,  iv.   §  viii. 

*  For  Ihering's  view  on  that  subject,  see  Der  Zweck  im  Recht,  i.  344,  366; 
for  Holland's  view,  see  Jurisprudence,  p.  126. 


LAW  PROPER   OR  STATE  LAW  527 

by  a  Petition  of  Right *  which,  after  being  lodged  with  the 
Home  Secretary  and  after  due  investigation,  receives,  in 
proper  cases,  the  royal  fiat,  "Let  right  be  done."  By  the 
constitution  of  the  United  States,  it  is  expressly  provided  that  in  American 
a  state  may  sue  or  be  sued  by  another  state  in  the  Supreme  8ys 
Court  in  the  special  and  limited  cases  defined  therein.  In 
Rhode  Island  v.  Massachusetts2  it  was  said  that  "as  this  court 
is  one  of  limited  and  special  jurisdiction,  its  action  must  be 
confined  to  the  particular  cases,  controversies,  and  parties 
over  which  the  Constitution  and  laws  have  authorized  it  to 
act;  and  proceeding  without  the  limits  prescribed  is  coram 
non  judice,  and  its  action  a  nullity  (10  Pet.  474;  S.  P.  4  Russ. 
415).  And  whether  the  want  or  excess  of  power  is  objected 
to  by  a  party,  or  is  apparent  to  the  court,  it  must  surcease 
its  action  or  proceed  extrajudicially."  For  that  reason  the 
court  has  declined  to  take  jurisdiction  of  suits  between  states  NO  j 
to  compel  the  performance  of  obligations  which,  if  the  states 
had  been  independent  nations,  could  not  have  been  enforced 
judicially,  but  only  through  the  political  departments  of  their 
governments.  Originally  a  state  was  suable  in  the  Supreme 
Court  by  a  citizen  of  another  state,  but  that  right  was  extin- 
guished by  the  Eleventh  Amendment,  which  provides  that 
"the  judicial  power  of  the  United  States  shall  not  be  con- 
strued to  extend  to  any  suit  in  law  or  in  equity,  commenced 
or  prosecuted  against  one  of  the  United  States  by  citizens  of 
another  state,  or  by  citizens  or  subjects  of  any  foreign  state." 
It  is  now  settled  that  under  certain  circumstances  a  state  may 
be  sued  by  the  United  States,3  whose  government  has  been 
most  careful  to  provide  for  its  own  accountability  to  private 
individuals.  On  February  24,  1855,  Congress  passed  an  act 

1  Cf.  Broom,  Constitutional  Law,  pp.  203  sq.  It  does  not  lie  for  a  tortious  act 
by  servants  of  the  crown.  Tobin  v.  The  Queen,  16  C.  B.  N.  S.  310. 

8  12  Pet.  720. 

1  See  Taylor,  Jurisdiction  and  Procedure  of  the  Supreme  Court  of  the  United 
States,  ch.  ii.,  "When  a  state  may  sue";  ch.  iii.,  "When  a  state  may  be  sued." 


528  THE  SCIENCE  OF  JURISPRUDENCE 

entitled  "An  Act  to  Establish  a  Court  for  the  Investigation 
The  court  of  Claims  against  the  United  States"  1  which  has  been  made 
^  a  permanent  institution.  Of  the  court  as  finally  constituted 
a  great  American  lawyer  2  said  that  it  is  the  first  born  of  a  new 
judicial  era.  As  a  judicial  tribunal,  it  is  not  only  new  in 
the  instance, — it  is  also  new  in  principle.  So  far  as  concerns 
the  power  of  courts  to  afford  redress,  it  has  heretofore  been 
fundamental  that  the  sovereign  can  do  no  wrong.  This 
court  was  erected  as  a  practical  negative  upon  that  vicious 
maxim.  Henceforth  our  government  repudiates  the  arro- 
gant assumption,  and  consents  to  meet  at  the  bar  of  en- 
lightened justice  every  claimant  how  lowly  soever  his  condi- 
tion. Prior  to  the  institution  of  this  court  all  rights  as 
against  the  nation  were  imperfect  in  the  legal  sense  of 
the  term;  every  duty  of  the  nation  was  a  duty  of  im- 
perfect obligation.  There  was  no  judicial  power  capable  of 
declaring  either;  no  private  person  possessed  the  means  of 
enforcing  the  one  or  coercing  the  other.  But  effectual  prog- 
ress has  been  made  toward  giving  form  and  method  to  the 
administration  of  justice  between  the  nation  and  the  indi- 
Jurisdiction  vidual.  And  in  order  to  bring  that  kind  of  justice  nearer  to 
every  citizen  Congress  granted,  by  the  act  of  March  3,  1887,3 
the  right  to  sue  the  United  States  in  the  district  of  the  plain- 
tiff's residence  for  certain  causes  of  action  arising  out  of  con- 
tract. If  the  cause  of  action  is  under  one  thousand  dollars, 
the  district  court  has  jurisdiction,  and  if  it  is  over  one  thou- 
sand dollars,  and  does  not  exceed  ten  thousand  dollars,  the 
circuit  court  has  jurisdiction,  and  both  courts  in  such  cases 
have  concurrent  jurisdiction  with  the  court  of  claims.  Thus 
was  completed  the  most  advanced  system,  so  far  devised  in 

1  10  Stat.  at  L.  612,  c.  122. 

2  Charles  O'Connor,  of  New  York.     The  speech  is  reported  in  full  in  a  volume 
entitled  Great  Speeches  by  Great  Lawyers,  Baker,  Voorhis  &  Co. 

8  Known  as  the  "Tucker  Act,"  24  Stat.  at  L.   603,  c.  359.      Cf.   Hughes, 
Federal  Procedure,  pp.  161  sq. 


LAW  PROPER   OR  STATE  LAW  529 

the  world's  history,  for  the  administration  of  justice  between 
the  individual  and  a  sovereign  state  of  which  he  is  a  member. 
From  what  has  now  been  said  as  to  the  division  of  law  proper  Division  of 
or  state  law  into  public  and  private,  it  clearly  appears  that 
such  is  the  most  ancient  and  radical  division,  a  division  aris- 
ing  out  of  the  character  of  the  persons  with  whom  a  right  is 
connected.  When  both  persons  with  whom  a  right  is  con- 
nected are  private  persons,  the  law  regulating  such  a  right  is 
"private"  law;  when  one  of  the  persons  with  whom  a  right  is 
connected  is  the  state  and  the  other  a  private  person,  the 
right  is  public,  and  the  law  regulating  such  a  right  is  "public" 
law.  As  legal  development  advanced,  each  of  these  grand 
divisions  was  subdivided  into  "substantive"  and  "adjective"  thandivi- 
law,  two  elements  which  in  the  early  stages  of  legal  growth  «substan- 
were  inseparable.  To  the  mind  of  the  modern  jurist  the  divi- 
sions  and  subdivisions  of  law  proper  or  state  law  should  thus 
appear : 

Law  Proper,  or  State  Law 


Private  Law  Public  Law 


Substantive         Adjective  Substantive         Adjective 

Private  law  is  either  "substantive"  or  "adjective,"  —  the 
former  creating  and  defining  the  rights  of  individuals,  the 
latter  indicating  the  procedure  or  remedial  law  through 
which  they  are  enforced.  In  the  same  way  public  law  is  sub- 
divided into  a  "substantive"  body  of  principles,  established 
for  the  protection  of  the  commonwealth,  and  "adjective" 
rules  through  which  such  principles  are  guarded  and  enforced. 

6.  As  the  rights  of  individuals  are  thus  created  and  defined  Private 
by  substantive  private  law,  to  that  source  must  we  look  for  law' 
a  description  of  a  legal  as  distinguished  from  a  moral  right. 
The  conclusion  has  been  reached  already  that  the  force  that 
gives  validity  to  a  legal  right  is,  in  every  case,  that  which  is 

2u 


530 


THE  SCIENCE  OF  JURISPRUDENCE 


Right  pre- 
supposes 
duty. 


Legal  right 
defined. 


Right  as 
correlative 
of  duty 
not  familiar 
in  early  law. 


Bent  bam 
and  Austin. 


imparted  to  it  by  the  state.  Every  right  necessarily  pre- 
supposes a  corresponding  duty  for  the  reason  that  it  implies 
the  active  or  passive  furtherance  by  others  of  the  wishes  of 
the  party  having  the  right.  The  capacity  of  control  over  the 
acts  of  another  person,  thus  given  by  the  law  of  the  state,  is 
said  to  be  a  right,  while  the  corresponding  liability  of  the 
other  person  to  have  his  acts  so  controlled  is  said  to  be  a  duty. 
The  legal  right  thus  created  and  protected  may  be  denned 
to  be  that  which  any  one  is  entitled  to  have  or  to  do,  or  to 
require  from  others,  within  the  limit  prescribed  by  law;  or, 
in  other  words,  a  right  is  a  legally  protected  interest.  As  Mr. 
Justice  Holmes  has  well  expressed  it:  "A  legal  right  is 
nothing  but  a  permission  to  exercise  certain  natural  powers, 
and  upon  certain  conditions  to  obtain  protection,  restitution, 
or  compensation  by  the  aid  of  the  public  force.  Just  so  far 
as  the  aid  of  the  public  force  is  given  a  man,  he  has  a  legal 
right,  and  this  is  the  same  whether  his  claim  is  founded  in 
righteousness  or  iniquity."  1  And  it  may  be  true,  as  the  same 
author  states,  that  legal  duties  are  logically  antecedent  to 
legal  rights.  Certain  it  is  that  the  higher  abstraction,  "  right," 
which  is  the  correlative  of  "duty,  was  not  familiar  in  early 
law."  The  conception  of  right  as  the  correlative  of  duty  is 
an  entirely  modern  acquisition  of  legal  science.  Bentham  and 
Austin  contributed  more  than  any  one  else  to  familiarize  the 
term.  Since  their  day  most  schemes  of  law  have  substituted 
or  have  attempted  to  substitute  "right"  in  place  of  "duty" 
as  a  basis  of  legal  classification.  Legal  conceptions  have 
consequently  been  largely  recast  and  the  attempt  has  been 
made  to  define  everything  in  terms  of  "right."  We  must 
not,  however,  conceive  that  such  analytical  process  has  any 
connection,  other  than  that  of  direct  reversal,  with  the  actual 
process  of  historical  growth.  That  which  to  the  analytical 
jurist  seems  most  fundamental  usually  appears  late  in  point 

1  The  Common  Law,  p.  214. 


LAW  PROPER  OR  STATE  LAW  531 

of  historical  development.  Such,  in  brief,  is  the  history  of 
the  process  through  which  analytical  jurists  have  been  able 
so  to  recast  legal  conceptions  as  to  define  everything  in  terms  Everything 


of  "right,"1  —  a  method  of  study  which  enables  us,  while  " 


looking  down  upon  the  whole  system  from  its  highest  point,  *?™t  °,f 
to  grasp  it  in  its  entirety.    A  legal  right  as  thus  understood  Elements  of 
embraces  four  elements:    (1)  the  person  in  whom  the  right  Hghl 
resides  or  who  is  benefited  by  its  existence;    (2)  the  object 
over  which  the  right  is  exercised  (whether  it  be  a  physical  thing 
or  what  the  law  chooses  to  treat  as  such),  if  any;    (3)  acts 
of  forbearance  which  the  person  in  whom  the  right  resides  is 
entitled  to  exact;   (4)  the  person  obliged,  or,  in  other  words, 
against  whom  the  right  is  available.    "The  nature  of  the  HOW  the 
right  varies  with  a  variation  in  any  one  of  the  four  terms  ^"ht** 
which  are  implied  in  it,  and  the  variations  in  the  nature  of  varies- 
the  right  give  rise  to  the  main  heads  or  departments  of  law."  2 

It  is  of  prime  importance  to  distinguish  between  rights  Rights 
available  against  all  the  world  and  rights  available  against 
determinate  persons,  —  jura  in  rem  and  jura  in  personam,  — 
phrases  borrowed  from  the  classical  jurists,  who  used  them 
originally  to  distinguish  actions  according  as  they  were 
brought  to  vindicate  rights  of  property  or  to  enforce  a  per- 
sonal obligation.  The  jus  in  rem  is  the  badge  of  property; 
the  jus  in  personam  is  a  mere  personal  claim.  The  owner  of 


property  has  the  right  to  its  exclusive  enjoyment,  which  dis.tin" 
avails  against  all  the  world,  but  not  against  one  person  more 
than  another;  while  the  parties  to  a  contract  have  rights 
available  against  each  other,  and  against  no  other  person. 
It  thus  appears  that  a  right  in  personam  is  one  available  against 
a  definite  individual,  while  a  right  in  rem  is  one  capable  of  ex- 
ercise over  its  object,  without  reference  to  one  person  more  Hug°'fl. 

expressive 

than  another.    Or,  to  employ  the  expressive  phrase  of  Hugo,  phrase. 

1  Street,  Foundations  of  Legal  Liability,  iii.  6  «g. 

2  Holland,  Jurisprudence,  p.  88. 


THE  SCIENCE  OF  JURISPRUDENCE 


Right  to 
freedom 
and  safety. 


The  terms 
"inalien- 
able" 


and  "in- 
nate. ' ' 


Right  to 
life. 


Freedom 
from 
menace, 
assault,  and 


"false  im- 
prison- 
ment." 


"there  are  rights  against  individuals"  and  "rights  against 
all  the  world."  1  First  among  rights  of  the  latter  class  stands 
the  right  to  personal  freedom  and  safety,  described  in  a  gen- 
eral way  in  that  clause  of  the  Declaration  of  Independence 
which  avers  that  men  "are  endowed  by  their  Creator  with 
certain  inalienable  rights;  that  among  these  are  life,  liberty, 
and  the  pursuit  of  happiness;  that  to  secure  these  rights 
governments  are  established  among  men."  The  term  "in- 
alienable" is  intended  to  indicate  the  fact  that  fundamental 
rights  are  from  their  very  nature  incapable  of  transfer.  The 
unlimited  waiver  of  such  rights,  such  as  self-sale  into  slav- 
ery, or  self-dedication  to  monastic  seclusion,  though  recog- 
nized in  early  law  systems,  is  either  forbidden  or  discoun- 
tenanced by  modern  civilization.  Such  rights  are  "innate" 
because  acquired  at  birth,  and  for  that  reason  inchoate  dur- 
ing the  period  of  minority,  while  obscured  by  the  superior 
right  of  parent  or  guardian,  whose  control  involves  custody 
and  possible  chastisement.  Every  well-ordered  state  under- 
takes to  guarantee  that  no  one  of  its  subjects  shall  be  killed, 
no  matter  how  infamous  or  worthless  he  may  be,  or  even  sus- 
tain personal  injury.  A  man  has  the  right  to  be  free  even 
from  menaces  by  gestures,  such  as  the  brandishing  of  a 
weapon  or  the  presenting  of  a  pistol,  provided  the  assailant 
is  near  enough  to  him  to  do  him  bodily  harm ; 2  and  a  fortiori 
from  actual  assault  and  battery,  from  wounding,  deliberately 
or  through  negligence,  and  from  such  actual  restraint  or 
show  of  force  or  authority  as  amounts  to  what  English  law 
calls  "false  imprisonment."  In  the  same  way  a  man  is  en- 
titled to  protection  from  injury  from  dangerous  substances 
or  animals  kept  by  another;  and  also  from  such  as  may 
result  from  latent  dangerous  places  in  the  house  or  land  of 
another,  whereby  damage  may  be  sustained  by  a  person 


1  Lchrbuch  tines  civilistischen  Cursus,  v.  72. 
a  Cobbett  v.  Grey,  4  Ex.  744. 


LAW  PROPER   OR  STATE  LAW  533 

having   lawful   business   there.     Under   this   head   may   be  Freedom  of 
placed  the  right  to  freedom  of  discussion,  which  embraces 
both  the  freedom  of  speech  and  of  the  press.    At  no  time 
has  there  been  in  England  any  proclamation  of  the  right 
to  liberty  of  thought  or  to  freedom  of  speech.    As  an  eminent  Definitions 
authority  has  stated  it:    "Our  present  law  permits  any  one  J^d    gera 
to  say,  write,  and  publish  what  he  pleases;   but  if  he  makes 
a  bad  use  of  this  liberty,  he  must  be  punished.     If  he  unjustly 
attack  an  individual,  the  person  defamed  may  sue  for  dam- 
ages; if,  on  the  other  hand,  the  words  be  written  or  printed, 
or  if  treason  or  immorality  be  thereby  inculcated,  the  offender 
may  be  tried  for  the  misdemeanor  either  by  information  or 
indictment."  1    Any  man  may  therefore  say  or  write   what- 
ever he  likes,  subject  to  the  risk  of,  it  may  be,  severe  punish- 
ment if  he  publishes  any  statement,  in  writing,  print,  or  by 
word  of  mouth,  which  he  is  not  legally  entitled  to  make. 
Or,  to  put  the  matter  in  a  more  sententious  way :   "  Freedom  Dicey, 
of  discussion  is,  then,  in  England  little  else  than  the  right  to 
write  or  say  anything  which  a  jury,  consisting  of  twelve  shop- 
keepers,  think  it   expedient  should   be  said   or  written." 2 
And  here  may  be  conveniently  considered  a  man's  right  to  Right  to 
reputation,  to  his  good  name,  which  no  one  has  the  right  to 
take  away  from  him  through  defamation  by  words  spoken  or 
written,  or  by  gestures  or  pictures,  in  disparagement  of  the 
man   himself   or   his   family   and   belongings.     The  Twelve 
Tables  recognized  it  to  be  a  grave  offense  "si  quis  occentavisset, 
sive    carmen    condidisset   quod   infamiam   faceret  flagitiumve 
alteri."  *    While   the   Romans   did   not    clearly   distinguish  Roman 
defamation  from  insult  given  by  blows,  they   classified  acts  tion  of 
of  insult  according  to  the  rank  of  the  person  insulted,  the  lnsults- 
place  where,  and  the  mode  in  which  the  insult  was  given. 
According  to  Roman  law  a  son  could  sue  for  damages  done 

1  Odgera,  Libel'and  Slander,  Introd.  (1st  ed.),  p.  12. 

*  Dicey,  The  Law  of  the  Constitution,  p.  234. 

*  Cicero,  De  Rep.  iv.  10. 


534 


THE  SCIENCE  OF  JURISPRUDENCE 


Necessity 
for  wrong 
intention. 


English  law 
of  defa- 
mation. 


Its  basic 
principle. 


Necessity 
for  falsity. 


to  a  statue  of  his  father  set  up  upon  his  tomb,  while  the  heirs 
of  a  deceased  person  would  have  an  action  for  an  insult  to 
his  dead  body,  or  to  his  funeral  procession.1  There  could  be, 
however,  no  infringement  without  a  wrong  intention,  although 
not  necessarily  directed  against  the  complainant;  and  no 
more  than  that  is  meant  by  the  English  doctrine  of  "malice" 
essential  to  defamation,  since,  where  there  exists  no  legal 
justification,  malice  will  be  "presumed."2  It  cannot  be 
denied  that  the  English  law  of  defamation  is  in  an  anomalous 
state,  a  condition  whose  cause  is  to  be  discovered  of  course 
in  legal  history.  As  an  able  writer  has  well  expressed  it,  "  the 
crooked  and  wrenched  form  of  the  law  of  slander  and  libel 
can  be  accounted  for,  but  it  must  be  accounted  for  in  the  way 
we  account  for  the  distorted  shape  of  a  tree, — by  looking  for 
the  special  circumstances  under  which  it  has  grown  and  the 
forces  to  which  it  has  been  exposed."3  And  yet  at  the  root 
of  it  all  can  be  discovered  the  general  principle  which,  with 
some  success,  has  struggled  for  utterance  through  the  deci- 
sions, and  that  is  the  fundamental  notion  found  in  the  idea 
of  harm  as  incident  to  interference  with  one's  good  name  or 
reputation.  The  repute  in  which  one  is  held  in  the  community 
can  only  be  impugned  by  the  communication  of  spoken  or 
written  words,  or  by  signs,  pictures,  or  effigies  which  are 
equally  competent  to  convey  thought.  That  a  particular 
communication  is  defamatory  necessarily  implies  falsity  in 
some  respect  or  in  some  particular;  a  truthful  communica- 
tion gives  no  cause  of  action;  malice  does  not  make  truth 
actionable ;  *  before  a  false  communication  can  be  a  basis  of 
legal  liability  it  must  be  of  a  defamatory  nature.  Hence 
whenever  it  appears  that  the  charge  complained  of  was  true 

1  Dig.  47.  1.  4;  Ibid.  27;  American  Law  Review,  xxiii.  578. 

*  Bromage  v.  Prosser,  B.  &  C.  255. 

*  "Slander  and  Libel "  (1872),  6  American  Law  Review,  597  (by  N.  St.  John 
Green). 

4  Castle  v.  Houston,  19  Kan.  417 ;   Foss  v.  Hildreth,  10  Allen  (Mass.)  76. 


LAW  PROPER   OR  STATE  LAW  535 

in  fact  and  in  substance  when  made,  the  action  for  defama- 
tion fails,  however  defamatory  the  publication  may  appear 
to  be  on  its  face.     But  proof  of  the  truthfulness  of  a  charge 
which  is  prima  facie  libelous  or  slanderous  must  come  from 
the  defendant,  and  the  wise  rule  is  adopted  that  such  matter 
of  justification  must  always  be  specially  pleaded  with  par-  Justifies- 
ticularity  of  detail.1    One  of  the  most  important  modes  in  ^  pi^ded 
which  a  defamatory  statement  may  be  justified  is  by  showing  BPeciaUy- 
that  it  is  "privileged,"  an  exceptional  immunity  whereby 
one  is  excused  from  the  consequences  of  an  act  which  upon 
general  principles  would  furnish  a  ground  of  action.    Under  Privileged 
that   head   fall   utterances   of   administrative   functionaries;  classified, 
communications  relating  to  affairs  of  state  between  officers 
of  state  in  the  course  of  official  duty;   reports  made  concern- 
ing a  subordinate  officer  by  his  superior  officer  acting  in  the 
course  of  his  military  duty;    utterances  of  members  of  par- 
liament, or  other  legislative  body,  made  in  the  course  of 
legislative    proceedings;     utterances    of    judges,    attorneys, 
witnesses,  jurors,  and  even  of  parties  litigant,  made  in  the 
course  of  judicial  proceedings.2    As  the  American  courts  have 
been  more  loth  than  the  English  to  declare  privilege  in  any 
particular  case  absolute,  it  is  here  generally  held  that  the 
privilege  of  lawyers,   witnesses,   and  parties  is  conditional 
upon  the  pertinence  of  the  matter  to  the  question  in  hand, 
and  its  materiality.3    Not  until  a  man  is  secure  in  his  reputa- 
tion is  he  in  a  position  to  enjoy  all  privileges  and  to  perform 
all  lawful  acts  which  belong  to  him  equally  with  every  other  , 
member  of  the  community.     As  such  he  is  entitled  to  demand 
that  the  legal  machinery,  set  up  for  his  protection,  shall  not 

1  Van  Ness  v.  Hamilton,  19  Johns  (N.Y.)  349 ;  Wachter  v.  Quenzer,  29 
N.Y.  552;  Wren  v.  Weild,  L.  R.  4  Q.B.213;  Tilton  v.  Beecher,  59  N.Y.  176. 

8  Kirkpatrick  v.  Eagle  Lodge  No.  32,  26  Kan.  390 ;  Chatterton  v.  Secretary 
of  State,  2  Q.B.  189;  Dawkins  v.  Paulet,  L.  R.  5  Q.B.  94;  Dillon  v.  Balfour,  20 
L.  R.  Ir.  600;  Coffin  v.  Coffin,  4  Mass.  1 ;  Scott  ».  Stansfield,  L.  R.  3  Exch.  220. 

*  Smith  v.  Howard,  28  Iowa,  51 ;  Barnes  v.  McCrate,  32  Me.  442 ;  Wright 
v.  Lothrop,  149  Mass.  385;  White  v.  Carroll,  42  N.Y.  161. 


536 


THE  SCIENCE  OF  JURISPRUDENCE 


Malicious 
prosecu- 
tion. 


Its  antiq- 
uity in 
Roman  and 
English 
law. 


Infliction 
of  costs. 


Use  of 
waters  and 
highways. 


Right  to 
one's  occu- 
pation. 


be  maliciously  employed  against  him,  without  reasonable 
and  proper  cause,  by  the  act  known  in  English  law  as  "ma- 
licious prosecution,"  *  which  is  simply  a  branch  of  defama- 
tion. The  law  of  malicious  prosecution  is,  however,  far  more 
ancient.  "From  the  very  twilight  of  English  law,"  says 
Bigelow,  "it  has  been  unlawful  for  men  to  harass  each  other 
with  vexatious  suits."  2  In  the  earlier  Roman  law  the  insti- 
tution of  such  suits  was  redressed  by,  amongst  other  methods, 
the  institution  of  a  cross  action,  "calumniae  judicium,"  which 
might  be  brought  by  the  defendant  against  a  dishonest  plain- 
tiff, either  during  the  process  of  the  principal  action,  or  after 
judgment  in  his  favor.3  The  infliction  of  costs  upon  the 
suing  party  became,  however,  the  chief  restraint  upon  mali- 
cious or  frivolous  suits  by  the  time  of  Justinian,4  the  restraint 
now  imposed  by  English  law.  As  a  member  of  the  community 
every  one  is  equally  entitled  to  the  enjoyment  of  the  free  and 
unobstructed  use  of  the  navigable  waters  and  the  public  high- 
ways. Apart  from  the  criminal  prosecution  which  may  be 
instituted  for  the  redress  of  the  public  wrong  resulting  from 
interference  with  the  use  of  them,  each  member  of  the  com- 
munity has  also  a  private-law  right  not  to  be  hindered  by 
such  interference,  subject,  however,  to  responsibility  if  he 
abuses  the  right  of  passage.5  Of  more  practical  importance 
is  the  right  of  every  one  to  pursue  without  molestation  the 
occupation  by  which  he  gains  his  livelihood.  In  a  notable 
case  (1706)  Lord  Holt  said:  "He  that  hinders  another  in  his 
trade  or  livelihood  is  liable  to  an  action  for  so  hindering  him. 
.  .  .  There  are  two  sorts  of  acts  for  doing  damage  to  a  man's 

1  For  a  description  of  its  elements,  see  Abrath  v.  N.E.  Ry.  Co.,  II.  App.  Ca. 
247. 

*  Bigelow,  Leading  Cases  in  Torts,  193. 

'  Gaius  (iv.  178),  who  aays,  "Qui  intelliget  non  recte  se  agere,  sed  vexandi 
adversarii  gratia." 

4  Cod.  3.  I.  13.  Concerning  the  oath  as  to  the  goodness  of  their  cause, 
required  of  both  plaintiff  and  defendant,  as  well  as  their  counsel,  see  Cod.  2.  59. 

*  Harrison  v.  D.  of  Rutland,  1  Q.B.  (C.  A.)  142. 


LAW  PROPER   OR  STATE  LAW  537 

employment,  for  which  an  action  lies;  the  one  in  respect  of 
a  man's  privilege,  the  other  in  respect  of  his  property.  In  Keebiet>. 
that  of  a  man's  privilege  or  franchise,  whereby  he  hath  a  fair  gi^ 
market,  or  ferry ;  if  another  should  use  the  like  liberty,  though 
out  of  his  limits,  he  shall  be  liable  for  an  action  though  by 
grant  of  the  king.  .  .  .  The  other  is  where  a  violent  or  ma- 
licious act  is  done  to  a  man's  occupation,  or  profession,  or 
way  of  getting  a  livelihood.  There  an  action  lies  in  all  cases. 
But  if  a  man  doth  him  damage  by  using  the  same  employ- 
ment, no  action  will  lie."  1  After  the  lapse  of  nearly  two 
centuries  an  attempt,  eventually  unsuccessful,  was  made  so 
to  extend  this  principle  as  to  render  actionable  persuasions 
and  threats,  unaccompanied  by  either  fraud  or  violence, 
whereby  an  employer  was  induced  to  terminate  the  agree- 
ments of  certain  of  his  workmen,  and  not  to  employ  them 
again.  The  plaintiffs  having  brought  an  action  against  the  Alien*, 
defendant,  the  jury  found  that  he  had  maliciously  induced 
the  employers  to  discharge  the  plaintiffs  and  not  to  engage 
them,  and  gave  the  plaintiffs  a  verdict  for  damages.  Judg- 
ment was  entered  in  accordance  with  the  verdict  and  the 
case  was  affirmed  in  the  Court  of  Appeal,2  and  from  that 
decision  an  appeal  was  taken  to  the  House  of  Lords,  where  a 
number  of  the  puisne  judges  were  called  upon  to  hear  the 
final  argument  and  to  give  their  opinions  upon  a  question 
propounded  by  the  lords  to  them.  The  case  was  then  de- 
cided by  the  lords,  six  being  in  favor  of  a  reversal  and  three 
in  favor  of  an  affirmance.3  When  in  a  later  case  the  House  Quinn». 
of  Lords  was  called  upon  to  discover  the  rationale  of  the 
decision  of  Allen  v.  Flood,  and  to  apply  its  doctrine  to  a  very 
similar  state  of  facts,  Lord  Chancellor  Halsbury  said:  "The 
hypothesis  of  fact  upon  which  Allen  v.  Flood  was  decided  by 
a  majority  in  this  House  was  that  the  defendant  there  neither 

1  Keeble  v.  Hickeringill,  II.  East,  575,  n. 
8  Allen  v.  Flood  (1895)  2.  Q.B.  21. 
*  Allen  v.  Flood  (1898)  A.C.  1. 


538 


THE  SCIENCE  OF  JURISPRUDENCE 


Case  of 
William 
Adair. 


Constitu- 
tionality 
of  act 
assailed 
because 


uttered  nor  carried  into  effect  any  threat  at  all:  he  simply 
warned  the  plaintiff's  employers  of  what  the  men  themselves, 
without  his  persuasion  or  influence,  had  determined  to  do, 
and  it  was  certainly  proved  that  no  resolution  of  the  trade 
union  had  been  arrived  at  at  all,  and  that  the  trade-union 
official  had  no  authority  himself  to  call  out  the  men."  1  In 
the  light  of  the  explanations  made  in  the  later  case  Holland 
concludes  that,  "it  may  be  safely  asserted  that,  as  a  general 
rule,  in  the  absence  of  justification,  coercion,  and  even  per- 
suasion, leading  to  the  breach  of  a  contract  of  service,  on  the 
part  of  either  employer  or  servant,  or  perhaps  if  merely  pre- 
venting the  formation  of  such  a  contract,  is  an  actionable 
wrong,  if  productive  of  actual  damage  to  the  party  thereby 
intentionally,  though  indirectly,  injured."  2  In  the  case  of 
William  Adair *  v.  the  United  States,  very  recently  decided 
by  the  Supreme  Court,  was  involved  the  constitutionality  of 
certain  provisions  of  the  Act  of  Congress  of  June  1,  1898, 
30  Stat.  424,  c.  370,  concerning  carriers  engaged  in  interstate 
commerce  and  their  employers.  The  10th  section,  upon 
which  the  prosecution  was  based,  is  in  these  words : 

"That  any  employer  subject  to  the  provisions  of  this  act 
and  any  officer,  agent,  or  receiver  of  such  employer,  who  shall 
require  any  employee,  or  any  person  seeking  employment, 
as  a  condition  of  such  employment,  to  enter  into  an  agree- 
ment, either  written  or  verbal,  not  to  become  or  remain  a 
member  of  any  labor  corporation,  association,  or  organization ; 
or  shall  threaten  any  employee  with  loss  of  employment,  or  shall 
unjustly  discriminate  against  any  employee  because  of  his  mem- 
bership in  such  a  labor  corporation,  association,  or  organiza- 
tion; or  who  shall  require  any  employee  or  any  person  seek- 
ing employment,  as  a  condition  of  such  employment,  to  enter 

1  Quinn  v.  Leathern  (1901),  A.C.  506.     For  an  exhaustive  analysis  of  these 
cases,  see  Street,  Foundations  of  Legal  Liability,  i.  347  sq. 

2  Jurisprudence,  pp.  180-181. 

1  October  Term,  1907,  not  yet  reported.     Opinion  by  Mr.  Justice    Harlan. 


LAW  PROPER   OR  STATE  LAW  539 

into  a  contract  whereby  such  employee  or  applicant  for  em- 
ployment shall  agree  to  contribute  to  any  fund  for  charitable, 
social,  or  beneficial  purposes;  to  release  such  employer  from 
legal  liability  for  any  personal  injury  by  reason  of  any  benefit 
received  from  such  fund  beyond  the  proportion  of  the  benefit 
arising  from  the  employer's  contribution  to  such  fund;  or 
who  shall,  after  having  discharged  an  employee,  attempt  or 
conspire  to  prevent  such  employee  from  obtaining  employ- 
ment, or  who  shall,  after  the  quitting  of  an  employee,  attempt 
or  conspire  to  prevent  such  employee  from  obtaining  em- 
ployment, is  hereby  declared  to  be  guilty  of  a  misdemeanor, 
and,  upon  conviction  thereof  in  any  court  of  the  United  States 
of  competent  jurisdiction  in  the  district  in  which  such  offense 
was  committed,  shall  be  punished  for  each  offense  by  a  fine 
of  not  less  than  one  hundred  dollars  and  not  more  than  one 
thousand  dollars." 

The  specific  charge  in  the  first  count  of  the  indictment  was 
"that  said  William  Adair,  agent  and  employee  of  said  com- 
mon carrier  and  employer  as  aforesaid,  in  the  district  afore- 
said, on  and  before  the  15th  day  of  October,  1906,  did  un- 
lawfully and  unjustly  discriminate  against  0.  B.  Coppage, 
employee  as  aforesaid,  by  then  and  there  discharging  said 
0.  B.  Coppage  from  such  employment  of  said  common  carrier 
and  employer,  because  of  his  membership  in  said  labor  organi- 
zation, and  thereby  did  unjustly  discriminate  against  an  employee 
of  a  common  carrier  and  employer  engaged  in  interstate  com- 
merce because  of  his  membership  in  a  labor  organization,  con- 
trary to  the  forms  of  the  statute  in  such  cases  made  and  pro- 
vided, and  against  the  peace  and  dignity  of  the  United  States." 

In  the  course  of  its  opinion  the  court  said :  "The  first  inquiry 
is  whether  the  part  of  the  10th  section  of  the  Act  of  1898  upon 
which  the  first  count  of  the  indictment  is  based  is  repugnant  repugnant 
to  the  Fifth  Amendment  of  the  Constitution  declaring  that  ^end- 
no  person  shall  be  deprived  of  liberty  or  property  without  ment- 


540  THE  SCIENCE  OF  JURISPRUDENCE 

due  process  of  law.  In  our  opinion  that  section,  in  the  par- 
ticular mentioned,  is  an  invasion  of  the  personal  liberty,  as 
well  as  of  the  right  of  property,  guaranteed  by  that  Amend- 
ment. Such  liberty  and  right  embraces  the  right  to  make 
contracts  for  the  purchase  of  the  labor  of  others  and  equally 
the  right  to  make  contracts  for  the  sale  of  one's  own  labor; 
each  right,  however,  being  subject  to  the  fundamental  con- 
dition that  no  contract,  whatever  its  subject-matter,  can  be 
sustained  which  the  law,  upon  reasonable  grounds,  forbids 
as  inconsistent  with  the  public  interests  or  as  hurtful  to  the 
public  order  or  as  detrimental  to  the  common  good.  This 
court  has  said  that  'in  every  well-ordered  society,  charged 
with  the  duty  of  conserving  the  safety  of  its  members,  the 
rights  of  the  individual  in  respect  of  his  liberty  may,  at  times, 
under  the  pressure  of  great  dangers,  be  subjected  to  such 
restraint,  to  be  enforced  by  reasonable  regulations,  as  the 
safety  of  the  general  public  may  demand.'  Jacobson  v. 
Massachusetts,  197  U.S.  11,  29,  and  authorities  there  cited.  It 
Relative  was  the  right  of  the  defendant  to  prescribe  the  terms  upon 
employer  which  the  services  of  Coppage  would  be  accepted,  and  it  was 
ployed!"  the  right  of  Coppage  to  become  or  not,  as  he  chose,  an  employee 
of  the  railroad  company  upon  the  terms  offered  to  him.  Mr. 
Cooley,  in  his  treatise  on  Torts,  p.  278,  well  says :  '  It  is  a  part 
of  every  man's  civil  rights  that  he  be  left  at  liberty  to  refuse 
business  relations  with  any  person  whomsoever,  whether  the 
refusal  rests  upon  reason,  or  is  the  result  of  whim,  caprice, 
prejudice,  or  malice.  With  his  reasons  neither  the  public 
nor  third  persons  have  any  legal  concern.  It  is  also  his  right 
to  have  business  relations  with  any  one  with  whom  he  can 
make  contracts,  and  if  he  is  wrongfully  deprived  of  this  right 
by  others,  he  is  entitled  to  redress.'  .  .  .  While  as  already 
suggested,  the  rights  of  liberty  and  property  guaranteed  by 
the  Constitution  against  deprivation  without  due  process  of 
law,  are  subject  to  such  reasonable  restraints  as  the  common 


LAW  PROPER   OR  STATE  LAW  541 

good  or  the  general  welfare  may  require,  it  is  not  within  the 

functions  of  government  —  at  least  in  the  absence  of  contract 

between  the  parties  —  to  compel  any  person  in  the  course  of 

his  business  and  against  his  will  to  accept  or  retain  the  per- 

sonal services  of  another,  or  to  compel  any  person,  against 

his  will,  to  perform  personal  services  for  another.    The  right 

of  a  person  to  sell  his  labor  upon  such  terms  as  he  deems 

proper  is,  in  its  essence,  the  same  as  the  right  of  the  purchaser 

of  labor  to  prescribe  the  conditions  upon  which  he  will  accept 

such  labor  from  the  person  offering  to  sell  it.     So  the  right 

of  the  employee  to  quit  the  service  of  the  employer,  for  what- 

ever reason,  is  the  same  as  the  right  of  the  employer,  for  what- 

ever reason,  to  dispense  with  the  services  of  such  employee. 

It  was  the  legal  right  of  the  defendant  Adair  —  however  un- 

wise such  a  course  might  have  been  —  to  discharge  Coppage 

because  of  his  being  a  member  of  a  labor  organization,  as  it 

was  the  legal  right  of  Coppage,  if  he  saw  fit  to  do  so,  —  how- 

ever unwise  such  a  course  on  his  part  might  have  been,  —  to 

quit  the  service  in  which  he  was  engaged,  because  the  defend- 

ant employed  some  persons  who  were  not  members  of  a  labor  Equality  of 

organization.     In  all  such  particulars  the  employer  and  the 


employee  have  equality  of  right,  and  any  legislation  that  Ployerand 
disturbs  that  equality  is  an  arbitrary  interference  with  the 
liberty  of  contract  which  no  government  can  legally  justify 
in  a  free  land.  These  views  find  support  in  adjudged  cases, 
some  of  which  are  cited  in  the  margin.1  In  the  absence, 
however,  of  a  valid  contract  between  the  parties  controlling 
their  conduct  towards  each  other  and  fixing  a  period  of 
service,  it  cannot  be,  we  repeat,  that  an  employer  is  under  any 

1  People  v.  Marcus,  185  N.Y.  257  ;  National  Protection  Asso.  v.  Cummings, 
170  N.Y.  315  ;  Jacobs  v.  Cohen,  183  N.Y.  207  ;  State  v.  Julow,  129  Mo.  163  ; 
State  v.  Goodwill,  33  W.  Va.  179;  Gillespie  v.  People,  188  111.  176;  State  v. 
Kreutzberg,  114  Wis.  530;  Wallace  v.  Georgia,  C.  &  N.  Ry.  Go.,  94  Georgia 
732  ;  Hundley  v.  L.  &  N.  R.R.  Co.,  105  Ky.  162  ;  Brewster  v.  Miller's  Sons  & 
Co.,  101  Ky.  358;  N.Y.  &c.  R.R.  Co.  v.  Schaffer,  65  Ohio,  414;  Arthur  v. 
Oakes,  63  Fed.  Rep.  310. 


542 


THE  SCIENCE  OF  JURISPRUDENCE 


The  court's 
conclusion. 


Commercial 
competi- 
tion. 


Gloucester 
Grammar 
School 
Case. 


Mogul 
Steamship 
Co.  v. 
McGregor. 


legal  obligation,  against  his  will,  to  retain  an  employee  in  his 
personal  service  any  more  than  an  employee  can  be  compelled, 
against  his  will,  to  remain  in  the  personal  service  of  another. 
So  far  as  this  record  discloses  the  facts  the  defendant,  who 
seemed  to  have  authority  in  the  premises,  did  not  agree  to 
keep  Coppage  in  service  for  any  particular  time,  nor  did 
Coppage  agree  to  remain  in  such  service  a  moment  longer 
than  he  chose.  The  latter  was  at  liberty  to  quit  the  serv- 
ice without  assigning  any  reason  for  his  leaving.  And  the 
defendant  was  at  liberty,  in  his  discretion,  to  discharge 
Coppage  from  service  without  giving  any  reason  for  so  doing." 
The  court  therefore  concludes  "that  the  provision  of  the  stat- 
ute under  which  the  defendant  was  convicted  must  be  held 
to  be  repugnant  to  the  Fifth  Amendment  and  as  not  embraced 
by  nor  within  the  power  of  Congress  to  regulate  interstate 
commerce,  but  under  the  guise  of  regulating  interstate  com- 
merce and  as  applied  to  this  case  it  arbitrarily  sanctions  an 
illegal  invasion  of  the  personal  liberty  as  well  as  the  right  of 
property  of  the  defendant  Adair." 

The  law  of  England  is  so  tolerant  of  competition  in  business 
that  it  recognizes  the  innocence  of  commercial  competition, 
causing,  even  intentionally,  loss  to  others.  That  competi- 
tion in  trade  and  labor,  unconnected  with  fraud,  is  a  matter 
of  very  high,  perhaps  of  absolute,  legal  privilege,  is  attested 
by  two  well-known  cases  decided  respectively  in  1411  and 
1892.  In  the  Gloucester  Grammar  School  Case1  it  was  held 
that  an  action  would  not  lie  where  two  masters  of  a  grammar 
school  brought  an  action  of  trespass  on  the  case  against 
another  master  who  had  set  up  a  rival  school  in  the  same 
neighborhood  and  thereby  deprived  the  plaintiffs  of  patron- 
age and  forced  them  to  reduce  their  fees.  In  Mogul  Steam- 
ship Co.  v.  McGregor 2  it  was  held  that  no  action  could  be 


»  Y.B.  II.  Hen.  IV.,  47,  pi.  21. 

8  (1892)  A.C.  25,  affirming  23  Q.B.D.  598,  and  21  Q.B.D.  544. 


LAW  PROPER   OR  STATE  LAW  543 

maintained  where  the  plaintiffs  alleged  that  the  defendants 
had  injured  them  by  entering  into  a  conspiracy  to  prevent 
the  vessels  of  plaintiffs  from  being  employed  by  shippers  in 
Chinese  ports  to  carry  their  cargoes  of  tea  to  London.  The 
conspiracy  was  alleged  to  have  been  put  into  effect  by  bribes, 
coercion,  and  threats;  and  it  was  proven  among  other  in- 
stances of  this  that  the  defendants  had  offered  a  special 
discount  to  those  exporters  who  employed  them  alone;  and 
also  had  organized  a  plan  of  sending  steamers  of  their  own 
to  meet  any  vessels  sent  to  Hankow  by  the  plaintiffs  and  to 
underbid  them,  even  by  accepting  rates  of  freight  so  low  as 
to  be  actually  unremunerative.  In  that  case  Bowen,  L.J., 
observed  in  the  Court  of  Appeal  that  shipowners  and  mer- 
chants are  not  bound  by  law  to  conform  to  any  imaginary 
"normal"  standard  of  freights  or  prices,  and  that  the  law 
courts  do  not  undertake  to  say  to  them  in  respect  to  their 
competitive  tariffs,  "Thus  far  shalt  thou  go  and  no  farther." 
And  yet  there  are  certain  forms  of  unfair  competition,  in-  Unfair  com- 
volved  with  interference  with  trade-marks,  trade-names,  to  t'rade-*8 
and  the  like,  which  are  not  allowed.1  In  the  United  States  J?"]?  and 

the  like. 

there  is  certainly  a  strong  and  growing  tendency  against  "un- 
fair competition"  by  means  of  "trusts"  and  "combines," 
strongly  accentuated  by  the  decisions  that  have  arisen  out 
of  the  application  of  what  is  known  as  the  Sherman  Anti- 
Trust  Law  of  1890.2 

From  the  consideration  of  rights  that  relate  to  no  tangible 
external  object  we  must  pass  to  those  proprietary  rights 
that  represent  the  extension  of  the  power  of  an  individual  Possession, 
over  portions   of  the   physical   world.    When  the  state  is 
organized  the  strong  hand  of  law  gives  to  the  mere  fact  of 

1  See  Street,  Foundations  of  Legal  Liability,  i.  416,  425. 

2  See  Chattanooga  Foundry  &  P.  Works  v.  Atlanta,   203  U.S.   390 ;  Carroll 
v.  Greenwich  Ins.  Co.,  199  U.S.  401 ;    Guss  v.  Nelson,  200  U.S.    298 ;    Peoria 
Gas  &  Electric  Co.  v.  Peoria,  200  U.S.  48.     As  to  illegal  trusts  under  modern 
anti-trust  acts,  see  note  to  Whitwell  v.  Continental  Tobacco  Co.,  64  L.R.A.  689. 


544 


THE  SCIENCE  OF  JURISPRUDENCE 


Pursuer  of 
animals. 


Offish. 


Of  whales. 


Detentio 
and  pos- 
sessio  dis- 
tinguished. 


possession  that  protection  which  the  savage,  who  has  hidden 
the  game  he  has  killed  in  his  cave,  can  hope  for  only  so  long 
as  it  is  undiscovered,  or  "so  long  as  he  watches  to  defend  it, 
or  is  stronger  than  his  rivals."  1  In  all  law  systems  the  fact 
of  being  the  first  finder,  discoverer,  or  possessor  of  a  thing 
has  invariably  enforced  in  favor  of  such  a  person  the  claim 
to  actual  proprietorship.  Neither  the  Roman  nor  the  com- 
mon law,  however,  gives  to  the  pursuer  of  wild  animals  the 
rights  of  possession  until  escape  has  been  made  impossible 
by  some  means.  Until  then  another  may  step  in  and  kill  or 
catch  and  carry  off  the  game  if  he  can.2  According  to  Jus- 
tinian a  wild  beast  so  badly  wounded  that  it  might  easily  be 
taken  must  be  actually  taken  before  it  belongs  to  its  captor.3 
And  an  English  court  has  held  that  when  fish  were  nearly 
surrounded  by  a  seine,  with  an  opening  of  seven  fathoms 
between  the  ends,  at  which  boats  were  stationed  to  frighten 
them  from  escaping,  they  were  not  reduced  to  possession  as 
against  a  stranger  who  rowed  in  through  the  opening  and 
helped  himself.4  On  the  other  hand,  Judge  Lowell  has  up- 
held a  custom  of  the  American  whalemen  in  the  Arctic  Ocean 
which  gives  the  whale  to  the  vessel  whose  iron  first  remains 
in  it,  provided  claim  be  made  before  cutting  in.5  In  Roman 
law  the  possessory  Interdicts  of  the  praetor  had  the  greatest 
possible  validity  for  the  purposes  of  guarding  even  the  most 
casual  and  transitory  claims  of  an  actual  possessor,  and,  under 
certain  circumstances,  of  enabling  such  claims  to  mature  into 
substantial  rights  of  ownership.  The  classical  jurists  recog- 
nized two  degrees  of  control  over  an  object,  the  lower  of 
which  is  known  to  modern  civilians  as  detentio,  the  higher  as 
possessio,  properly  so  called.  "Possession  is  the  occupation 

1  Bentham,  Principes  du  Code  Civil,  par  Dumont,  ch.  IX. 
8  Dig.  41.  1.  5,  2  Kent's  Comm.  349,  citing  Pierson  v.  Post,  3  Caines  (N.Y.) 
175;  Buster  ».  Newkirk,  20  Johnson  (N.Y.)  75. 

»  Inst.  2.  1,  13.  *  Young  v.  Hichens,  6.  Q.B.  606. 

•  Swift  v.  Gifford,  2  Lowell  110.     Cf.  Holmes,  The  Common  Law,  p.  218. 


LAW  PROPER   OR  STATE  LAW  545 

of  anything  with  the  intention  of  exercising  the  rights  of 
ownership  in  respect  of  it."  l  It  has  been  well  said  that 
possession  stands  in  a  position  intermediate  between  simple 
detention  and  absolute  ownership,  and  that  it  implies  two 
elements,  a  physical  and  a  mental  one,  —  physical  detention 
and  mental  intention  to  hold  the  thing  possessed  as  one's 
own.  In  the  words  of  the  Digest,  Apisdmur  possessionem 
corpore  et  animo,  neque  per  se  animo  aut  per  corpore.2  Only  Only  po&- 
that  kind  of  possession  was  protected  by  the  Interdicts,  Tect°dby°~ 
regardless  of  the  justice  or  injustice  of  its  origin,  against  any  Interdicts. 
one  from  whom  it  had  not  been  acquired  vi  clam  aut  precario.3 
Naturalis  possessio,  which  implied  mere  physical  contact  with 
a  thing  apart  from  all  attempted  exercise  of  rights  with  respect 
to  it,  carried  no  rights  of  any  kind  with  it.  Only  when 
physical  contact  was  accompanied  with  the  fact  of  inten- 
tional and  conscious  exercise  of  rights  of  ownership  (possessio 
ad  interdicta)  was  the  Interdict  of  the  praetor  available  to 
reinstate  the  possessor  provisionally  even  if  ousted  by  the 
true  owner.  Mere  detention  or  naturalis  possessio  exists 
when  the  intention  to  dispose  of  the  object  is  limited  by  a 
distinct  recognition  of  the  outstanding  right  of  another; 
possessio  exists  when  the  holder  believes  himself  to  be  the 
rightful  owner  of  the  object,  or,  having  merely  found  it, 
intends  to  keep  it  subject  to  the  possibility  of  the  owner 
making  his  appearance,4  or,  having  stolen  it,  means  to  keep 
it  against  all  comers.8  The  intention  of  such  a  possessor 
has  been  described  by  modern  civilians  as  the  animus  domini,  The  animus 
or  more  recently  as  animus  possidendi.  The  position  of  the 
possessor  in  Roman  law  was  a  very  strong  one.  If  a  bona 
fide  possessor,  he  could  bring  an  action  for  furtum  even 
against  the  owner;  if  a  mala  fide  possessor  of  land,  he  was  so 

1  Hunter,  Roman  Law,  209.  »  Dig.  41.  2.  3.  1. 

3  Cf .  Savigny,  Recht  dea  Beaitzes,  §  42. 

«  Dig.  43.  17.  2.  •  Dig.  5.  3.  11-13. 

Sx 


546 


THE  SCIENCE  OF  JURISPRUDENCE 


Savigny's 
view. 


Holland's 
criticism. 


Ihering's 
attack. 


far  protected  that  he  could  not  be  ejected  by  force.1  In 
analyzing  the  grounds  of  distinction  drawn  by  the  Roman 
lawyers  between  the  possession  which  would  be  and  that 
which  would  not  be  protected  by  the  Interdicts,  it  is  neces- 
sary to  turn  to  Savigny,  the  only  German  writer  on  the  sub- 
ject with  whom  English  readers  are  generally  acquainted, 
who  said  that  the  animus  domini,  or  intent  to  deal  with  the 
thing  as  owner,  is  in  general  necessary  to  turn  a  mere  physi- 
cal detention  into  juridical  possession.2  According  to  Ger- 
man opinion  the  type  of  Roman  possession  was  that  of  an 
owner,  or  of  one  on  his  way  to  become  owner.  German  phi- 
losophy teaches  that  a  man's  physical  power  over  an  object 
is  protected  because  he  has  the  will  to  make  it  his,  and  it  has 
thus  become  a  part  of  his  very  self,  the  external  manifesta- 
tion of  his  freedom.3  In  criticising  Savigny's  theory  Holland 
well  says  that  it  is  "open  to  the  objection  that  it  does  not 
account  for  the  fact  that  the  Interdicts  were  also  accorded 
to  the  emphyteuta,  the  pledge  holder,  the  precario  tenens, 
and  the  sequester,  to  none  of  whom  can  the  animus  domini  be 
attributed.  Savigny  was  only  able  to  reply  by  saying  that 
for  practical  reasons  what  we  call  a  'derivative'  (abgeleiteter) 
possession  was  admitted  in  these  cases."  4  In  the  attack 
made  upon  the  key  to  Savigny's  position  (the  animus  domini) 
by  Ihering  in  his  latest  work,  Ueber  den  Besitzwillen,5  the  con- 
tention is  that  the  difference  between  detention  and  interdict- 
possession  has  nothing  to  do  with  the  will;  that  whoever  so 
far  exerts  his  will  over  an  object  as  to  obtain  detention  of  it, 
possesses  it  for  all  purposes  except  in  so  far  as  possession  is 

1  A  mala  fide  possessor  of  movables  could,  however,  acquire  no  rights  con- 
trary to  that  principle  of  English  law,  where  in  certain  cases  a  thief  can  give 
a  good  title  to  stolen  goods,  though  he  has  no  title  himself. 

2  Recht  des  Besitzes,  §  21. 

*  "The  will  which  wills  itself,  that  is,  the  recognition  of  its  own  personality 
is  to  be  protected."     Puchta,  Institutionen,  §§  224,  226;    Windscheid,  Pand., 
§  148,  note  6. 

4  Jurisprudence,  pp.  191-192. 

•  Jena,  1889,  v.  327. 


LA IV  PROPER   OR  STATE  LAW  547 

denied  to  him  by  some  special  rule  of  law.  Ihering  appeals 
for  aid  to  a  variety  of  special  rules  of  law  to  explain  the  denial 
to  borrowers,  lessees,  and  the  like,  of  the  possessory  remedies 
to  which  in  accordance  with  his  theory  they  are  prima  facie 
entitled,  just  as  Savigny  appealed  to  a  fictitious  "derivative" 
possession  in  the  case  of  the  pledge  holders  and  others  who  on 
principle  would  not  be  possessors.  Or,  as  Mr.  Justice  Holmes 
has  expressed  it :  "  Ihering,  to  be  sure,  a  man  of  genius,  took 
an  independent  start,  and  said  that  possession  is  ownership 
on  the  defensive;  and  that,  in  favor  of  the  owner,  he  who  is 
exercising  ownership  in  fact  (i.e.  the  possessor)  is  freed  from 
the  necessity  of  proving  title  against  one  who  is  in  an  unlawful 
position.  But  to  this  it  was  well  answered  by  Bruns,  in  his 
later  work,  that  it  assumes  the  title  of  disseisors  to  be  gener- 
ally worse  than  that  of  disseisees,  which  cannot  be  taken  for 
granted,  and  which  probably  is  not  true  in  fact."  1  Teu- 
tonic law,  ignoring  the  two  grades  of  possession  which  have 
so  perplexed  the  civilians,  has  granted  possessory  remedies 
freely  to  persons  who  in  Roman  law  could  never  have  profited 
by  the  Interdicts.  While  possessory  rights  are  denied  to  Possessory 
servants,2  the  common  law,  ignoring  the  distinction  between 
detention  and  possession,  grants  possessory  remedies  to  all 
persons  in  occupation  of  land  or  having  custody  of  goods. 
From  time  immemorial  all  bailees  have  been  regarded  by  Eng- 
lish law  as  possessors,  and  entitled  to  the  possessory  remedies.  All  bailees 
The  theory  is  that  every  bailee  has  a  true  possession,  and  that 
a  bailee  recovers  on  the  strength  of  his  possession,  just  as  a 
finder  does,  and  as  even  a  wrongful  possessor  may  have  dam- 
ages or  a  return  of  the  specific  thing  from  a  stranger  to  the 
title.  And  besides  those  concerning  bailees  and  tenants, 
there  is  a  class  of  English  cases  which  will  probably,  although 
not  necessarily,  be  decided  one  way  or  the  other,  as  we 

1  The  Common  Law,  p.  208,  citing  Besitzklagen,  pp.  276,  279. 

*  Dicey,  Parties,  pp.  335-358 ;    Pollock  &  Wright,  Possession,  p.  59. 


548 


THE  SCIENCE  OF  JURISPRUDENCE 


Occupatio 
in  inter- 
national 
law. 


Res  nullius 
in  Roman 
law. 


Doctrine 
applied  to 
partition 
of  New 
World. 


Ownership. 


adopt  the  test  of  an  intent  to  exclude,  or  of  the  animus 
domini.1 

The  Roman  law  doctrine  of  possession  or  occupation  has 
been  of  immense  importance  in  international  law.  According 
to  that  doctrine  anything  without  an  owner,  res  nullius,  might 
be  taken  possession  of  by  any  one  who  desired  to  keep  it,  and 
such  taking  possession,  as  a  mode  of  acquisition,  was  known 
as  occupation  If  the  thing  thus  acquired  had  once  had  an 
owner  it  was  necessary  to  show  that  he  had  voluntarily  aban- 
doned it,  while  the  new  possessor  was  also  required  to  manifest 
his  purpose  to  retain  it,  —  "  apprehension  must  be  accom- 
panied by  an  animus  possidendi,  or  rem  s-ibi  habendi."  3  As 
res  nullius  the  Romans  counted  a  new  island  found  in  the 
middle  of  a  river,  divisible  between  the  riparian  owners  by  a 
line  drawn  midway  between  the  banks;  or  what  is  more  to 
the  point,  a  new  island  rising  in  the  sea  through  volcanic  action, 
to  which  Italy  was  no  stranger.  Such  was  the  source  to  which 
Grotius  turned  for  the  rules  that  were  to  regulate,  to  some 
extent  at  least,  the  process  of  discovery  and  settlement  ap- 
plied by  the  European  nations  to  the  partition  of  the  New 
World.  By  discovery  each  nation  was  supposed  to  take 
possession  of  what  it  desired  as  res  nullius;  by  settlement,  to 
manifest  its  intention  to  keep  it  as  its  own.4 

A  broad  distinction  was  drawn  in  Roman  law  between 
possession  and  ownership  (dominium) ;  distinct  interests  pro- 
tected by  different  remedies,  —  possession  by  interdict, 
ownership  by  action.  While  the  higher  is  no  doubt  a  develop- 


1  Holmes,  The  Common  Law,  pp.  174  sq.  and  221,  citing  as  a  starting-point 
Bridges  v.  Hawkesworth,  15  Jur.  1079 ;  7  Eng.  L.  and  Eq.  424. 

*  The  taking  of  what  previously  belonged  to  no  one:    "quod  enim  nullius 
est,  id  ratione  natural!  occupanti  conceditur." 

*  Mackeldey,  Modern  Civil  Law  (Kaufmann's  ed.),  i.  249. 

4  In  Johnson  v.  Mclntosh,  8  Wheat.  573,  Marshall,  C.J.,  said :  "This  prin- 
ciple was  that  discovery  gave  title  to  the  government  by  whose  subjects,  or 
by  whose  authority,  it  was  made  against  all  other  European  governments, 
which  title  might  be  consummated  by  possession." 


LAW  PROPER   OR  STATE  LAW  549 

ment  of  the  lower  right,1  ownership  is  that  far  ampler  measure 
of  right  over  an  object  which  a  person  possesses  irrespective 
of  actual,  or  even  constructive,  control  over  it.     It  is  that 
interest  which  Austin  has  described  as  a  right  "over  a  deter- 
minate thing,  indefinite  in  point  of  user,  unrestricted  in  point 
of  disposition,  and  unlimited  in  point  of  duration."  2    Within  Extent  of 
the  limits  which  the  policy  of  the  state  prescribes  by  virtue  interest!" 
of  its  dominium  eminens  the  owner  is  allowed  to  exercise  his 
natural  powers  over  the  subject-matter,  excluding  all  and 
accountable  to  no  one.     On  the  other  hand,  the  possessor  is 
permitted  to  exclude  all  but  one,  and  is  accountable  to  him 
alone.    Leaving  out  of  view  such  things  as  are  incapable  of 
appropriation,  such  as  air,  and  in  most  cases  water,  and  such 
things  as  are  set  apart  for  the  general  purposes  of  the  state,  Things  to 
ownership  may  extend  to  things  movable  and  immovable,  ownership 
res  fungihiles  and  non-fungibiks,  things  corporeal  and  incor-  ™^d 
poreal,  singulae  res  and  universitas  rerum,  and  things  divisible 
and  indivisible,  principal  and  accessory,  existing  and  about 
to  exist.    Acquisition,  original  or  derivative,  may  take  place  Acquisition, 
through  occupancy,  specification,  accession,  invention,  pre-  derivative, 
scription,  alienation  in  life,  alienation  on  death,  adjudication, 
and  forfeiture.     Apart  from  dominion  or  absolute  ownership,  Ownership, 
hi  which  the  mode  of  user,  duration  of  the  right,  and  facilities  and°  U 
of  alienation  are  unlimited  or  indefinite,  there  are  lesser  rights  ^ualified- 
of  ownership  including  emphyteusis,  and  usufructuary  estates 
generally,  servitudes  or  easements,  and  generally  all  jura  in  re 
according  to  the  largest  intent  of  the  classical  jurists,  includ- 
ing the  rights  of  carriers,  of  depositaries,  or  pledgees,  and  of 
the  merest  possessors ;  and  estates  for  life,  for  years,  or  upon 
condition,  copyhold  estates,  and  estates  in  tail  in  English 
law.     Rights  of  ownership  less  than  the  most  unrestricted 
ones  are  strictly  limited  on  many  sides;    and  their  classi- 

1  "Dominium  rerum  ex  naturali  possessione  coepisse  Nerva  fill  us  ait."    Dig. 
41.  2.  1.  1.     See  also  Cic.  De  Off.  i.  7. 
*  Jurisprudence,  ii.  477 ;   cf .  iii.  2. 


550 


THE  SCIENCE  OF  JURISPRUDENCE 


Immunity 

from 

fraud. 


Dolus 
mains  in 
Roman 
law. 


Actio  de 
dolo. 


Fraud  as 
defined  in 
English  and 
American 
law. 


fication  may  rest  upon  the  differences  in  the  mode  of  the  user 
allowed,  in  the  duration  of  the  right,  or  the  faculties  for  its 
transmission  from  hand  to  hand. 

Another  right  available  against  all  the  world  is  that  guaran- 
teeing to  every  one  an  immunity  from  fraud,  which  relieves 
the  person  pleading  it  on  the  ground  that  he  was  deceived  with 
respect  to  the  immediate  consequences  of  his  act.  As  the 
idea  of  moral  responsibility  involves  the  capacities  of  form- 
ing an  intention,  of  willing  and  of  acting,  it  cannot  be  com- 
plete where  the  intent  to  do  an  act  to  be  immediately  followed 
by  a  certain  set  of  foreseen  consequences  is  thwarted  either 
by  the  concealment  of  the  real  consequences  of  the  act  in- 
tended or  by  the  crafty  substitution  of  another  set  of  unfore- 
seen consequences  which  the  actor  never  contemplated. 
Fraud  occurs  when,  by  means  of  a  representation  neither  true 
nor  believed  to  be  true  by  the  person  making  it,  the  will  of 
another  is  intentionally  driven  to  a  decision  harmful  to  his 
interests.  As  defined  by  Servius,  "dolus  mains"  is  "machi- 
natio  quaedam  alterius  decipiendi  causa,  cum  aliud  simulater 
et  aliud  agitur";  by  Labeo,  "omnis  calliditas,  fallacia,  machi- 
natio  ad  circumveniendum,  fallendum,  decipiendum,  alterum 
adhibita."  l  The  actio  de  dolo  submitted  no  question  of  legal 
right  for  the  consideration  of  the  judge,  but  only  a  question 
of  fact,  proof  of  which  was  to  be  followed  by  a  condemnation. 
The  formula  ran  thus:  "Titius  be  judge.  Should  it  appear 
that,  through  the  fraud  of  N.  N.,  A.  A.  was  induced  to  con- 
vey and  give  up  possession  of  his  farm  (describing  it)  to  N.  N., 
then,  Judge,  unless  according  to  your  order  N.  N.  restores  it, 
you  will  condemn  him  in  damages  to  A.  A. ;  if  it  shall  not  so 
appear,  you  will  acquit  him."  2  In  English  and  American 
law  "fraud  is  a  false  representation  of  fact,  made  by  the 
party  who  is  charged  with  it,  with  a  knowledge  of  its  false- 
hood, or  in  reckless  disregard  whether  it  be  true  or  false,  with 

1  Dig.  4.  3.  1.  »  Cf.  Muirhead,  Roman  Law,  p.  341. 


LAW  PROPER   OR  STATE  LAW  551 

the  intention  that  it  shall  be  acted  upon  by  the  complaining 
party,  and  actually  inducing  him  to  act  upon  it,  to  his  dam- 
age. From  this  definition,  it  is  necessary,  in  order  to  consti- 
tute fraud,  the  following  constituent  elements  be  present, 
viz.:  (a)  a  false  representation;  (6)  a  representation  of  fact; 
(c)  a  representation  made  by  the  party  charged ;  (d)  knowl- 
edge of  its  falsehood  or  a  reckless  indifference  in  the  matter: 
(e)  an  intention  that  it  shall  be  acted  upon  by  the  other  party, 
(/)  a  reliance  upon  it  by  the  other  party;  (gr)  damage  to 
the  party  deceived."  1  If  the  representation  is  believed  in,  it 
does  not  make  it  fraudulent  that  it  is  not  founded  on  rea- 
sonable grounds.  But  the  absence  of  reasonable  grounds  for 
the  belief  may  be  some  proof  that  the  belief  was  not  honestly 
entertained.1  That  principle  has  been  thus  stated  by  the 
House  of  Lords  in  the  leading  English  case : 2  "In  my  opinion,  Lord 
making  a  false  statement  through  want  of  care  falls  far  short  of, 
and  is  a  very  different  thing  from,  fraud,  and  the  same  may  be 
said  of  a  false  representation  honestly  believed,  though  on 
insufficient  grounds.  ...  At  the  same  time,  I  desire  to  say 
distinctly  that  when  a  false  statement  has  been  made,  the 
questions  whether  there  were  reasonable  grounds  for  believ- 
ing it,  and  what  were  the  means  of  knowledge  in  the  posses- 
sion of  the  person  making  it,  are  most  weighty  matters  for 
consideration.  The  ground  upon  which  an  altered  belief  was 
founded  is  a  most  important  test  of  its  reality.  I  can  conceive 
many  cases  where  the  fact  that  an  alleged  belief  was  desti- 
tute of  all  reasonable  foundation  would  suffice  of  itself  to 
convince  the  court  that  it  was  really  entertained,  and  that 
the  representation  was  a  fraudulent  one."  8  Thus,  in  the  case 
cited,  the  House  of  Lords  reversed  the  Court  of  Appeal 
where  it  was  held  that  it  was  enough  if  the  statement  be  such 

1  Lawson  on  Contracts,  p.  284. 

*  Lord  v.  Goddard,  13  How.  198;   Lamberton  v.  Dunham,  166  Pa.  St.  129; 
Salisbury  v.  Howe,  87  N.Y. 

*  Lord  Herschell  in  Peek  v.  Derry,  14  A.C.  375. 


552 


THE  SCIENCE  OF  JURISPRUDENCE 


Pollock's 
opposition. 


Family 
rights 
incident  to 
marriage. 


Polygamous 
and  inces- 
tuous 
marriages. 


"Free 
marriage" 
at  Rome. 


Manns 
and  its  con- 
sequences. 


as  an  ordinarily  careful  man  in  the  defendant's  position  would 
not  have  believed  to  be  true,  a  view  strenuously  supported  by 
Sir  Frederick  Pollock.1  Some  courts  hold  that  a  positive 
statement  of  fact  within  one's  means  of  knowledge  implies 
that  he  has  knowledge  and  that  therefore  the  statement  if 
false  is  fraudulent.2 

In  concluding  the  consideration  of  rights  available  against 
all  the  world,  mention  must  be  made  of  those  most  vital  to 
the  state,  which  are  vested  by  virtue  of  the  institution  of 
marriage  in  the  husband,  and  to  some  extent  in  the  wife,  to 
the  society  and  control  of  the  family.  As  polygamous  and 
incestuous  marriages  are  always  void  in  Christian  countries, 
though  valid  where  contracted,3  it  is  hardly  necessary  to  con- 
sider such  as  fall  within  either  category.  It  is  most  impor- 
tant to  consider  the  institution  of  marriage  as  it  has  existed 
at  Rome  and  hi  England  and  in  states  that  have  drawn  from 
those  sources.  Whatever  may  have  been  the  case  in  pre- 
historic times,  at  the  date  of  the  Twelve  Tables  a  marriage 
could  be  contracted  without  any  ceremonies  whatever,  by 
the  sole  consent  of  the  parties,  the  husband  not  acquiring  any 
power  over  the  wife,  and  the  latter  retaining  whatever  prop- 
erty she  previously  possessed.  And  yet  while  such  a  "free 
marriage"  was  possible,  the  almost  invariable  custom  in  the 
old  days  was  to  add  to  the  marriage  a  ceremony  creating  a 
relation,  called  by  the  Romans  hand  (manus),  which  brought 
the  wife  into  her  husband's  power,  putting  her,  so  far  as  legal 
rights  were  concerned,  in  the  position  of  a  daughter  (filiae 
loco).  Thus  the  husband  became  entitled  to  all  the  property 
she  had  at  the  marriage  and  all  she  might  acquire  afterwards, 

1  L.Q.R.  v.  410.  Sir  W.  Anson  supported  the  view  of  the  House  of  Lords, 
whose  decision  gave  rise  to  the  Directors  Liability  Act,  1890. 

3  Chatham  Furnace  Co.  v.  Moffatt,  147  Mass.  403 ;  Cole  v.  Cassedy,  138 
Mass.  437;  Olcott  v.  Bolton,  50  Neb.  779;  Raley  v.  Smith,  73  Mo.  310; 
Cowley  v.  Smyth,  46  N.J.L.  380. 

1  As  to  polygamous  and  incestuous  marriages,  see  Minor,  Conflict  of  Laws, 
§§  9,  75. 


LAW  PROPER   OR  STATE  LAW  553 

whether  by  gift  or  by  her  own  labor,  which  he  could  command. 
The  wife  was  entitled  to  the  support  of  her  husband,  and  to 
receive  a  share  of  his  property  at  his  death,  as  one  of  the 
"family  heirs"  (sui  heredes),  whom  he  could  disinherit  only 
in  a  formal  way.    The  wife  thus  passed  out  of  her  original 
family,  losing  her  rights  of  inheritance  in  it.    With  the  final 
extinction  of  confarreatio  l  and  coemptio,2  the  two  forms  of 
ceremony  by  which  the  power  of  the  hand  (manus)  could  be 
created,  that    ancient  form  of   despotic  control  completely  itsaboii- 
disappeared.     From  the  time  of  Julius  Caesar  onward  the 
marriage  without  hand  had  become  the  rule,  while  from  the 
time  of  Hadrian  onward  the  legal  acts  usually  accompanying 
the  marriage,  which  placed  the  wife  under  the  husband's 
control,   were   almost   obsolete.8    Under   the   new   practice, 
universal  in  the  time  of  Tacitus,  Juvenal,  and  Martial,  the  Emanci- 
Roman  wife  was  as  independent  of  her  husband  as  if  she  had  ^om&o. 
remained  unmarried.     He  had  little  control  over  her  actions;  Wlfe> 
her  property,  no  matter  how  received,  remained  her  own  for 
all  purposes;    she  did  not  enter  her  husband's  family;    and 
she  acquired  only  a  very  limited  right  of  intestate  succession 
to  his  property.    Thus  a  high  conception  of  marriage  arose 
which  Modestinus  has  defined  as  a  partnership  in  the  whole  Marriage 
of  life,  a  sharing  of  rights  both  sacred  and  secular.4    At  last  Modestinus 
the  wife  is  the  husband's  equal,  —  a  fact  expressed  in  the 
phrase  the  bride  anciently  used  when  brought  to  the  husband's 

1  A  religious  ceremony,  originally  confined  to  members  of  the  patrician 
houses,  conducted  by  the  high  priests  of  state,  in  the  presence  of  ten  witnesses. 
Gai.  i.  112.  See  Rossbach,  Die  romische  Ehe  (Stuttgart,  1853),  pp.  95  sq. 

*  A  mode  of  acquiring  mama  over  their  wives  by  plebeians,  after  they  had 
become  citizens.     The  only  copper  needed  was  a  single  raudusculum.     The 
words  recited  in  the  ceremonial  were  necessarily  different  from  those  of  an 
ordinary  mancipation.     Gai.  i.  123. 

'  While  there  was  a  distinction  between  justae  nuptiae,  which  could  only  be 
contracted  between  Roman  citizens,  and  the  matrimonium  juris  geniium, 
created  by  the  marriage  of  a  full  citizen  to  a  hah"  citizen  or  an  alien  (peregrinus), 
the  latter  was  perfectly  valid,  and  the  children  were  legitimate.  As  to  their 
status,  see  Gai.  Inst.  i.  78.  79. 

*  "Nuptiae  sunt  conjunctio   maris  et   feminae   et  consortium  omnis  vitae, 
divini  et  humani  juris  communicatio."     Dig.  23.  2.  1. 


554 


THE  SCIENCE  OF  JURISPRUDENCE 


A  civil  act 
without 
state  inter- 
vention. 


Council  of 
Trent. 


Its  indirect 
influence  in 

England. 


house,  Ubi  tu  Gaiiis,  ego  Gaia.  And  here  let  the  fact  be 
emphasized  that  the  act  whereby  marriage  was  contracted 
was  purely  a  private  act,  without  any  state  intervention, 
without  registration  or  other  public  record  of  any  kind.  The 
act  was  purely  a  civil  act,  to  which  no  religious  or  ecclesiastical 
rite  was  essential  either  in  heathen  or  Christian  times;  the 
act  required  no  prescribed  form.  According  to  the  invari- 
able Roman  maxim,  "Marriage  is  contracted  by  consent 
only"  (nuptiae  solo  consensu  contrahuntur).1  The  canon  law, 
collected  and  codified  in  the  thirteenth  and  fourteenth  cen- 
turies, so  far  adhered  to  the  established  Roman  doctrine  as 
to  recognize,  prior  to  the  Council  of  Trent,  the  main  principle 
that  marriage  requires  nothing  more  than  the  free  consent  of 
the  parties,  so  expressed  as  to  show  that  the  union  is  to  be  a 
permanent  and  lawful  one.  That  Council  passed  a  decree 
which,  after  reciting  that  clandestine  marriages,  though 
blameworthy,  had  been  held  valid,  declared,  against  the 
strong  protest  of  some  of  its  members,  that  for  the  future  all 
should  be  deemed  invalid  unless  celebrated  in  the  presence 
of  a  priest  and  of  two  or  three  witnesses.2  While  in  England, 
where  the  influence  of  the  Roman  system  was,  of  course,  less 
than  in  France  and  Italy,  the  decrees  of  Trent  were  not  recog- 
nized, the  motive  that  prompted  its  action  in  this  particular 
induced  the  ecclesiastical  courts  to  favor  the  almost  universal 
custom  of  marrying  before  a  clergyman,  and  to  require  in  all 
other  cases  strict  proof  that  a  real  consent,  creating  a  lawful 
marriage,  had  actually  been  given.8  So  much  of  the  English 
law  of  marriage  as  pertained  to  the  marriage  relation  itself, 

1  The  relation  rested  entirely  on  the  free  will  of  the  parties.  In  the  third 
century  the  Emperor  Severus  Alexander  said:  "Libera  matrimonia  esse 
antiquitus  placuit."  Cod.  8.  38.  2.  A  formal  betrothal  (sponsalia)  generally 
preceded  the  actual  wedding. 

a  But  that  Council  (seas,  xxiv.,  cap.  i.,  Decretum  de  Reformaiione  Matrimonii) 
anathematizes  "qui  falso  affirmant  matrimonia  a  nliisfamilias  sine  consensu 
parentum  contracta  irrita  esse."  See  A.  Rivier,  Droit  de  Famille  Roman,  p.  142. 

*  In  the  case  of  Reg.  v.  Millis,  1843,  an  Irish  appeal,  the  House  of  Lords  was 
equally  divided  upon  the  question  whether  consent,  and  consent  alone,  was 


LAW  PROPER   OR  STATE  LAW  555 

that  is  to  say,  to  the  capacity  for  contracting  it  (including  the  Canon  and 
prohibited  degrees),  to  the  mode  of  contracting  it,  and  its  ^m 
dissolution,  complete  or  partial,  belonged  to  the  canon  law 
and  was  administered  in  the  spiritual  courts;  while  so  much 
of  it  as  affected  the  property  rights  of  the  two  parties,  espe- 
cially rights  to  land,  belonged  to  the  common  law  and  was 
administered  in  the  temporal  courts.  The  effect  of  the  law 
of  England  upon  the  property  and  personal  rights  of  the  wife 
has  generally  been  described  as  making  the  two  consorts  one  Consorts 
person  in  law.  By  virtue  of  that  oneness  the  wife  was  in-  C 
capable  of  making  a  valid  contract,  and  was  therefore  not 
liable  on  any  agreement  she  might  enter  into.  By  marriage 
the  husband  became  entitled  to  the  rents  and  profits  of  all 
real  estate  owned  by  the  wife  at  the  time  of  the  marriage,  and 
of  all  such  as  might  come  to  her  during  coverture,  and  if  a  child 
was  born  of  the  marriage,  his  interest  lasted  for  the  whole  of 
his  life  whether  his  wife  survived  him  or  not.  As  to  the  per- 
sonal property  of  the  wife  in  her  possession,  the  husband 
became  entitled  at  once  on  the  marriage  to  it  absolutely.  He 
might  dispose  of  it  as  he  saw  fit  during  her  life,  whether  with 
or  without  her  consent;  he  might  bequeath  it  by  will;  and 
after  his  death  such  property  was  regarded  as  assets  of  his 
estate,  the  title  passing  to  his  executors  and  administrators 
to  the  exclusion  of  his  wife,  though  she  survived  him.  The 
wife's  earnings  belonged  to  the  husband,  and  so  did  real 
estate  purchased  with  them  during  the  coverture.1  The 
marital  right  of  chastisement,  incident  to  marriage  in  many 
rude  societies,2  was  not  wanting  in  English  law.3  The  wife 

still  all  that  was  necessary  to  make  a  marriage  valid.  According  to  Lord 
Stowell's  view,  the  presence  of  a  clergyman  was  not  essential.  Dalrymple 
v.  Dalrymple,  2  Haggard  54.  Upon  the  whole  subject,  see  Bryce,  Studies  in 
History  and  Jurisprudence,  Essay  XVI. 

1  For   the   authorities,    English  and   American,    see  Lawson   on   Contracts, 
pp.  189-190. 

*  Apparently,  in  the  early  days  at  Rome,  the  husband  could  punish  the  wife 
even  with  death,  after  holding  a  family  council. 

*  1  Blackstone,  Comm.,  bk.  1.,  c.  15. 


556  THE  SCIENCE  OF  JURISPRUDENCE 

could  bring  no  action  without  joining  the  husband  as  plaintiff, 
Actions  for  nor  could  she  be  sued  without  joining  him  as  defendant.  She 
wife.  could  not  give  evidence  for  or  against  him  (save  where  the 

offense  was  against  herself),  and  if  she  committed  a  crime 
(other  than  treason  or  murder)  along  with  him,  she  went 
unpunished,  on  the  hypothesis  that  she  did  it  under  his  com- 
pulsion.1 The  wife's  slavery  as  thus  defined  by  the  common 
influence  of  law  was  first  lightened  by  courts  of  equity  which,  after  es- 
equity.°  tablishing  the  wife's  equity  to  a  settlement,  finally  admitted 
that  she  was  capable  of  possessing  property  for  her  own  use, 
independently  of  her  husband,  a  principle  gradually  widened 
until  it  became  fully  settled,  that  however  the  wife's  property 
might  be  acquired,  whether  through  contract  with  her  hus- 
band before  marriage  or  by  gift  from  him  or  from  any  stranger 
independently  of  such  contract,  equity  would  protect  it,  if 
duly  set  apart  as  her  separate  estate.2  Nor  was  the  inter- 
position of  a  trustee  essential;  the  court  would  even  hold 
the  husband,  if  necessary,  a  trustee  for  her.3  Finally  the 
gross  injustice  of  allowing  a  selfish  or  wasteful  husband  to 
seize  his  wife's  earnings  and  neglect  her  was  remedied  by 
Final  eman-  several  acts  (the  first  in  1857) ;  and  in  1870  Parliament, 
Parliament,  taking  the  step  which  the  Romans  had  taken  long  before  the 
Christian  era,  and  which  many  of  the  American  states  had 
taken  in  the  first  half  of  the  nineteenth  century,  passed  a 
statute,  amended  and  extended  by  others  of  1874  and  1882, 
whereby  was  swept  away  the  old  rule  which,  by  the  mere  fact 
of  marriage,  vested  all  of  the  wife's  property  in  the  husband. 
And  so,  by  slow  degrees,  has  the  wife  who  is  subject  to  English 
law  risen  at  last  to  the  level  of  independence  finally  guaran- 

1  In  a  case  in  the  thirteenth  century,  where  the  husband  and  wife  had  pro- 
duced a  forged  charter,  the  husband  was  hanged  and  the  wife  went  free,  "be- 
cause she  was  under  the  rod  of  the  husband"  (quid  fuit  sub  virga  viri  sui). 
Pollock  and  Maitland,  vol.  ii.,  p.  406  (quoting  Bracton,  f.  414). 

*Schouler  on  Husband  and  Wife,  p.  191. 

»  Rech  v.  Cockell,  9  Ves.  375 ;  Barron  v.  Barron,  24  Vt.  375 ;  Steel  v.  Steel, 
1  Ired.  (Eq.)  452. 


LAW  PROPER   OR  STATE  LAW  557 

teed  by  Roman  law,  through  a  process  of  judicial  and  statu- 
tory emancipation  that  secures  to  a  woman  whatever  she 
possesses  at  her  marriage  or  receives  after  it,  or  earns  for 
herself,  just  as  if  she  were  unmarried,  while  the  husband  no 
longer  becomes  liable  by  marriage  for  her  ante-nuptial  debts. 

In  English  and  American  law  the  two  essential  elements  Marriage 
of  the  legal  idea  of  marriage  are :  (1)  the  contract  of  marriage, 
the  agreement  of  the  parties,  the  wedding  ceremony;  and 
(2)  the  state  of  life  which  is  ushered  in  by  that  ceremony  or 
agreement,  the  matrimonial  union,  or  the  marriage  status. 
The  proper  law  regulating  the  marriage  status  may  be  divided 
into  the  following  heads :  (1)  the  law  governing  the  commence- 
ment of  the  status;  (2)  that  governing  the  continuance  of 
the  status,  with  the  incidents  arising  therefrom;  and  (3)  the 
law  governing  the  dissolution  of  the  status,  or  divorce.  As 
the  contract  of  marriage  thus  gives  rise  to  a  status,  it  must 
be  governed  by  rules  varying  somewhat  from  those  govern- 
ing contracts  generally.  The  incidents  of  the  marriage  tie 
arise  by  operation  of  law  from  the  marital  relation,  not  from 
the  marriage  contract,  and  are  to  be  determined  and  controlled 
in  general  by  the  same  law  that  controls  that  relation,  the 
lex  domicilii,  unless  the  particular  case  is  one  of  the  great 
exceptions.1  As  against  all  the  world  the  husband  has  the 
marital  right  that  no  other  man  shall,  by  force  or  persuasion,  Analogous 
deprive  him  of  his  wife's  society,  still  less  be  criminally  husband 
intimate  with  her ;  and,  by  recent  American  cases,  an  anal-  and  Wlfe- 
ogous  right  has  been  recognized  as  vested  in  the  wife.2  The 
proposed  Civil  Code  of  the  state  of  New  York  3  (pt.  ii.,  §  32) 

1  See  statement  of  Appleton,  J.,  in  Adams  v.  Palmer,  51  Me.  481,  483;  State 
v.  Tutty,  41  Fed.  Rep.  753,  758. 

2  See  Westlake  v.  Westlake,  34  Ohio  St.  R.  621 ;  Kneesy  v.  Exner,  Brooklyn 
Superior  Court,  N.Y. ;  Mehrhoff  v.  Mehrhoff,   U.S.  Circuit  Court,  26  Fed.  Rep. 
13;  Foot  v.  Card,  58  Conn.  1.     See  also  an   article   entitled"  The  Husband- 
Seducer,"  in  26  Am.  Law  Review  (1892). 

8  Adopted  in  California,  Montana,  and  North  and  South  Dakota.    Cf .  Holland, 
Jurisprudence,  p.  168  and  note  3. 


558 


THE  SCIENCE  OF  JURISPRUDENCE 


Parental 
rights  and 
duties. 


Seduction. 


Tutor  or 
guardian. 


Right  of,  as 
defined  by 
Serviua. 


expressly  forbids  "the  abduction  of  a  husband  from  his 
wife  or  of  a  parent  from  his  child."  The  rights  and  duties 
of  parents  with  respect  to  their  children  may  be  regarded 
as  an  incident  to  the  marriage  relation,  or  the  relation  of 
parent  and  child  may  be  treated  as  a  distinct  status  or  con- 
dition. So  far  as  the  rights  of  personal  control,  treatment, 
or  chastisement  are  concerned,  these  are  usually  considered 
questions  of  local  policy  or  police,  the  extent  of  which  must 
be  determined  and  fixed  in  each  state  by  its  own  laws,  as 
to  all  persons  within  its  borders,  regardless  of  their  legal  situs 
or  domicile.1  The  English  action  of  seduction  rests  upon  the 
assumption  that  the  person  wronged  is  not  the  girl  herself, 
who  may  be  supposed  to  have  consented  to  the  act,  but  her 
parent,  or  other  person  entitled  to  her  services,2  who  is  damni- 
fied by  its  results.  An  artificial  extension  of  the  parental 
power  may  take  place  when  one  or  both  of  the  parties  die 
before  the  child  or  children  of  the  marriage  shall  have  at- 
tained to  an  age  at  which  they  may  be  presumed  competent 
to  avail  themselves  of  the  rights  or  to  perform  the  duties 
cast  upon  an  adult.  Such  an  artificial  extension  may  be 
conferred  by  the  last  will  of  the  parent,  or  by  a  deed  executed 
by  him,  or  by  a  judicial  act,  or  by  a  devolution  on  certain 
defined  classes  of  relatives,  or  may  vest  in  a  tribunal,  such 
as  an  equity  court.  The  right  of  a  tutor,  or  guardian,  defined 
by  Servius  as  "jus  ac  potestas  in  capite  libero  ad  tuendum  eum 
qui  propter  aetatem  se  defendire  nequit,"  3  is  given  of  course 
to  him,  not  for  his  own  benefit,  but  for  that  of  his  pupillus, 
or  ward;  and  terminates  on  the  death  of  tutor  or  ward,  on 

1  Woodworth  v.  Spring,  11   Allen  (Mass.)  321 ;  Jac.  Dom.  §  33.    See  also 
Blackinton  v.  Blackinton,  141  Mass.  432,  435,  436. 

2  The  master  of  a  maid-servant  has  a  right  of  action  for  her  seduction.     Fores 
v.  Wilson,  Peake  55.     No  action,  however,  lies  against  a  seducer  who  is  also 
the  girl's   employer.     Whitbourne  v.  Williams,    2   K.B.  722.     As  to  the  right 
of  a  parent  to  recover  for  the  seduction  of  a  daughter  over  twenty-one,  although 
there  is  no  actual  contract  of  service,  see  2  Kent  (12th  ed.)  205,  note  1. 

»  Dig.  26.  1.  1. 


LAW  PROPER   OR  STATE  LAW  559 

the  resignation  or  removal  of  the  former,  and  on  the  marriage 

of  the  latter  or  his  attaining  a  certain  age.    As  the  status  of 

guardianship,  like  that  of  administration,1  is  a  local  and  tem- 

porary status  and  not  a  permanent  and  universal  one,  the 

powers  and  liabilities  of  the  tutor  or  guardian  are  for  the  most 

part  local  to  the  place  of  his  appointment  and  qualification. 

Another  family  right  that  should   be  mentioned  here  is  that  Master 

exercised  by  the  master  over  his  slaves,  which,  in  early  law, 

was  as  ample  as  that  exercised  over  his  cattle.2    Such  right 

was   infringed   by   killing   the   slave,  by  injuring  him  so  as 

to  make  him  less  valuable,  or  by  enticing  him  away.    A 

large  chapter  in  Roman  law  is  filled  by  the  disabilities  of 

libertini  and  their  duty  towards  their  patroni.    The  general  Abolition  of 

abolition  of  slavery,  universal  in  the  ancient  world,  repre- 


sents  one  of  the  occasional  breaks  in  the  continuity  of  the  effect  on 

history  of 

history  of  law,  the  effect  of  which  has  been  to  clear  the  con-  law. 
ception  of  a  legal  person  as  opposed  to  a  thing  from  all  the 
ambiguities  attaching  to  that  conception  so  long  as  human 
beings  were  treated  to  a  greater  or  less  extent  as  if  they  were 
chattels. 

Having  now  completed  the  examination  of  rights  available  Rights 
against  all  the  world  (jura  in  reiri),  consideration  must  next 


be   given   to   rights   available   against   determinate   persons  determmat« 
(jura  in  per  sonant).    To  rights  in  rem  the  Roman  jurists 
opposed  the  topic  "Obligations,"  which  must  not  be  confused  "Obiiga- 
with  the  far  narrower  term  as  sometimes  used  hi  English  law, 
as  it  includes  ah1  rights  in  personam,  whether  prior  to  wrong- 


1  For   important   distinctions   between    the   two   classes   of  fiduciaries,   see 
Lamar  v.  Micou,  112  U.S.  452. 

2  Not  until  the  doctrines  of  the  jus  naturale  began  to  gain  ground  was  the 
slave  reckoned  as  anything  more  than  a  chattel.     The  doctrine  that  slavery 
is  against  nature  was  older  than  Aristotle,  who  does  not  accept  it.     See  W.  L. 
Newman's  Politics  of  Aristotle,   Introd.,   p.    141.     The   improved   position  in 
Justinian  law  is  manifested  by  the  declaration  that  "slavery  is  contrary  to  the 
law  of  nature;    as,  according  to  the  natural  law,  all  men  were  from  the  first 
born  free."     Inst.  1.  2.  2. 


560  THE  SCIENCE  OF  JURISPRUDENCE 

doing  or  arising  out  of  it.1  In  its  broadest  sense  the  term 
is  synonymous  with  duty,  and,  as  its  etymology  shows,  it 
signifies  a  tie  of  some  kind  which  binds  us  to  the  performance 
of  any  act  we  ought  to  do.  When  thus  understood  it  is 
possible  to  comprehend  how  the  jurists  of  the  classical  period 
attributed  obligation  either  to  contract,  delict,  or  miscel- 
whatthe  laneous  causes  (variae  causarum  figurae).  It  thus  embraced 
embrace*.  obligationes  ex  contractu  and  quasi  ex  contractu,  obligationes  ex 
delicto  and  quasi  ex  delicto.  No  other  part  of  the  law  system  was 
so  thoroughly  worked  by  the  Roman  jurists  as  the  law  of  obliga- 
tions ;  no  other  part  has  been  so  fully  absorbed  into  the  juristic 
systems  of  the  modern  world.  In  considering  the  sources 
of  obligations  it  is  not  logical  to  say  that  an  obligation  and 
a  contract  are  one  and  the  same  thing  as  they  bear  the  rela- 
tion of  effect  and  cause.  While  every  valid  contract  creates 
an  obligation,  every  valid  obligation  does  not  create  a  con- 
tract. On  the  contrary,  the  civilians  now  recognize  five 
sources  of  obligations:  (1)  contracts;  (2)  quasi-contracts, 
Five  sources  (3)  offenses;  (4)  quasi-off  enses ;  (5)  the  operation  of  law.2 
gations.  When  we  consider  the  narrower  and  more  usual  sense  of  the 
term  "contract,"  signifying  such  a  two-sided  act  as  creates 
"  Contract "  rights  in  personam,  we  find  it  well  defined  in  the  phrase  of  Ul- 
pian  to  be  " duorum  vel  plurium  in  idem  placitum  consensus" : s 
a  meeting  of  two  or  more  minds  on  the  same  plane  with 
reference  to  the  same  thing.  Or,  as  Savigny  has  expressed 
it,  it  is  in  this  sense  "the  union  of  several  in  an  accordant 
expression  of  will,  with  the  object  of  creating  an  obligation 
between  them." 4  To  the  same  effect  are  the  words  of 
Pothier,  who  defines  a  contract  to  be  an  agreement  whereby 

1  E.g.  "obligamur  aut  re,  aut  verbis,  aut  simul  utroque,  aut  consensu,  aut 
lege,  aut  jure  honorario,  aut  necessitate,  aut  ex  peccato."  Modestinus, 
in  Dig.  44.  7.  52,  cited  by  Holland  (Jurisprudence,  p.  235,  note  1),  who  refers 
to  the  more  familiar  list  of  the  sources  of  obligation  given  in  Inst.  3.  13.  2. 

3  Cf.  Howe,  Studies  in  the  Civil  Law,  pp.  207  sq. 
*  Dig.  2.  14.  1,  §  1. 

4  Obligationenrecht,  ii.,  p.  8.     Cf.  Puchta,  Inst.  iii.,  p.  89. 


LAW  PROPER   OR  STATE  LAW  561 

two  parties  reciprocally  promise  and  engage,  or  one  of  them 
singly  promises  and  engages  to  the  other,  to  give  some  par- 
ticular thing,  or  to  do,  or  abstain  from  doing,  some  par- 
ticular act.1  The  Code  Napoleon  defines  a  contract  to  be 
"an  agreement  by  which  one  of  several  persons  bind  them- 
selves towards  one  or  several  others  to  give,  to  do,  or  not  to 
do  something."  The  contractiis  is  one  thing,  the  obligatio 
ex  contractu  is  another.  The  act  alone  is  the  contract,  the 
resulting  contractual  relation  is  quite  another  thing.  The 
general  rule,  that  rights  cannot  be  acquired  by  third  parties  Rights  of 
who  are  not  a  party  to  a  contract  unless  by  the  creation  of  a 


trust,2  has  been  departed  from  by  a  New  York  case  establish- 
ing an  exception  in  favor  of  certain  beneficiaries  under  a 
contract  to  which  they  were  not  parties,3  an  exception  which 
seems  to  have  been  carried  still  farther  by  a  recent  English 
case.4  According  to  Savigny's  analysis,  the  constituent 
elements  of  a  contract  are  :  (1)  several  parties  ;  (2)  an  agree- 
ment of  their  wills;  (3)  a  mutual  communication  of  this 
agreement  ;  (4)  an  intention  to  create  a  legal  relation  between 
the  parties.5  In  harmony  with  that  analysis  the  civilians 
usually  consider  that  four  requisites  are  necessary  to  the  Four 
validity  of  every  contract  :  (1)  parties  legally  capable  of  con-  vaMit°y. 
tracting  ;  (2)  their  consent  legally  given  ;  (3)  a  certain  object 
which  forms  the  matter  of  the  agreement;  and  (4)  a  lawful 
cause  or  motive.  Thus  hi  every  case  the  inquiry  must  be 
made,  first,  whether  the  parties  are  incapable  of  contracting 
by  reason  of  minority,  lunacy,  coverture,  or  the  like  ;  second, 
whether  consent  has  been  prevented  by  error,  fraud,  or  force; 

1  Oblig.,  art,  I. 

2  Tweddle  v.  Atkinson,  1  B.  <fe  S.  393.     The  federal  courts  of  the  United  States 
seem  on  the  whole  to  take  the  same  view.     See  E.  A.  Harriman,  Elements  of  the 
Law  of  Contracts,  pp.  215-228. 

*  Lawrence  v.  Fox,  20  N.Y.  268. 

«  The  Satanita  (1895),  P.  (C.A.)  248  (1897)  A.C.  59.      Cf.  Holland,  Juris- 
prudence, p.  250  and  notes  4,  5,  6. 

•  System,  iii.  308. 

2o 


562 


THE  SCIENCE  OF  JURISPRUDENCE 


Interpreta- 
tion or  con- 
struction. 


Bases  of 
classifica- 
tion. 


A  logically 
convenient 

arrange- 
ment. 


third,  whether  the  object  of  the  contract,  i.e.  the  thing  which 
the  parties  agree  to  give,  to  do,  or  not  to  do,  is  something 
definite  or  capable  of  definition,  something  possible  in  itself; 
and,  fourth,  whether  the  cause  or  motive  (the  equivalent  of 
"consideration"  as  used  in  English  and  American  law)  is 
real  and  lawful.  The  next  vitally  important  subject  is  that 
of  interpretation  or  construction  resting  upon  rules  formu- 
lated by  the  Roman  jurists  which  still  abide  at  the  foundation 
of  modern  doctrines  regulating  the  interpretation  or  con- 
struction of  statutes  and  agreements,  and  even  of  treaties. 
In  summarizing  the  bases  upon  which  contracts  have  been 
classified  a  distinguished  authority  has  said:  "There  is  (1) 
the  historical  basis,  which  was  the  one  adopted  by  the  Roman 
lawyers  and  their  modern  followers.  The  nature  of  this 
basis  has  been  fully  expounded  by  Professor  Maine,  and  is 
well  known  to  consist  in  the  gradual  evolution  of  the  mental 
and  moral  aspects  of  the  contract  from  the  formal  and  me- 
chanical elements  which,  in  the  earliest  times,  essentially 
characterized  it.  There  is  (2)  the  basis  indicated  by  the  va- 
riety of  the  formal  acts  by  which  the  making  of  a  contract 
may  be  legally  authenticated.  This  is  the  mode  which  has 
been  most  popular  among  English  text-book  writers,  who 
usually  start  their  investigations  into  the  law  of  contract  by 
distributing  all  contracts  into  'contracts  under  seal'  and 
'contracts  not  under  seal/  There  is  (3)  the  basis  furnished 
by  the  material  contents  of  the  contract,  that  is,  by  the  social 
or  other  purposes  which  the  contract  has  to  serve."  1  It  is 
logically  convenient  to  arrange  the  various  kinds  of  contracts 
in  the  following  classes:  first,  as  "principal,"  that  is,  entered 
into  without  an  ulterior  object,  and  as  "accessory,"  that  is, 
entered  into  only  for  the  better  carrying  out  of  a  principal 
contract;  second,  as  personal,  heritable,  or  real;  third,  as 
simple  or  conditional;  fourth,  as  limited  or  unlimited  (with 

1  Amos,  A  Systematic  View,  p.  214. 


LAW  PROPER   OR  STATE  LAW  563 

reference  to  the  term  of  payment  or  performance);  fifth, 
as  conjunctive  or  alternative;  sixth,  as  several,  conjoint, 
or  solitary;  seventh,  as  divisible  or  indivisible.  A  careful 
study  of  the  jurists  will  reveal  eleven  methods  by  which 
contracts  may  be  extinguished,  viz.:  (1)  payment;  (2)  nova- 
tion; (3)  voluntary  remission;  (4)  compensation;  (5)  con- 
fusion; (6)  death;  (7)  loss  of  the  thing;  (8)  the  resolutory 
condition;  (9)  expiration  of  the  term;  (10)  rescission; 
(11)  prescription. 

The  writers  of  the  Institutes  say  that  "Having  enumer-  Obligations 
ated  the  kinds  of  contracts,  we  may  now  explain  those  obli-  q^ura^u. 
gations  which  do  not   spring  properly  from  contract;    yet, 
as   they   do   not   derive  their  origin  from  any  wrongdoing, 
seem   to   be   produced   quasi  ex  contractu."1    The   Roman 
jurists  perceived  that  while,  as  Gaius  has  expressed  it,  obli- 
gations as  a  rule  proceed  either  from  contract  or  tort,2  yet 
there  are  many  acts  or  facts  which  may  and  ought  to  create 
a  legal  tie  without  any  conventions,  or  the  commission  of  any 
wrong,  or  the  omission  of  any  duty.     The  rights  which  the 
Roman  lawyers  thus  described  as  arising  quasi  ex  contractu, 
or  more  simply,  ex  variis  causarum  figuris,3  may  therefore 
be  described  as  arising  ex  lege.    The  essence  of  the  difference  Arise 
between    obligations  ex   contractu  and  obligations  quasi  ex  exlege' 
contractu  is  that  the  former  spring  from  the  agreement  of 
the  parties,  the  latter  from  voluntary  and  lawful  acts  in  the 
absence  of  any  agreement.    Ulpian  declares:    "The  praetor 


says  that  if  a  man  shall  have  conducted  the  affairs  of  another 
or  what  shall  have  been  the  affairs  of  some  one  at  the  time  of 
his  death,  I  will  give  an  action  on  that  behalf;"  4  while  Gaius 
says:  "If  a  person  has  conducted  the  affairs  of  one  in  his 
absence,  without  a  mandate,  it  has  been  held  that  they  are 
under  mutual  liability,  and  actions  have  been  provided  in 

1  Inst.  3,  88,  27.  pr.  »  Dig.  44.  7.    1.  pr. 

a  Inet.  3,  88.  *  Dig.  3.  5.  3  and  1. 


564 


THE  SCIENCE  OF  JURISPRUDENCE 


Police 
Jury  v. 
Hampton. 


Moses  v. 

Macfarlen. 


Not  an 

"implied 

contract.' 


that  behalf  which  we  call  actions  negotiorum  gestorum,  by 
which  they  can  mutually  proceed  concerning  what  it  behooves 
the  one  to  render  the  other  in  good  faith."  l  In  a  leading 
case  the  Supreme  Court  of  Louisiana  has  said:  "It  is  a 
maxim  common  to  the  jurisprudence  of  all  countries  that  no 
one  is  permitted  to  profit  by  the  labor  of  another  without 
compensating  him  for  it.  .  .  .  On  this  principle  the  Roman 
jurists  held  that  he  who  acted  for  another,  by  transacting 
his  business,  or  making  repairs  on  his  property,  could  recover 
the  amount  of  the  expenses  incurred,  or  the  value  of  the 
repairs,  provided  the  acts  of  the  negotiorum  gestor  were 
necessary  and  useful  to  the  person  for  whom  he  acted.  This 
doctrine  has  descended  to  us,  and  makes  a  part  of  the  positive 
legislation  of  the  state." 2  In  Moses  v.  Macfarlen,3  Lord 
Mansfield  said  that  if  the  defendant  be  under  obligation  from 
the  ties  of  natural  justice  to  refund,  the  law  implies  a  debt 
(not,  let  it  be  noted,  a  contract),  and  gives  the  action  of 
indebitatus  assumpsit,  founded  on  the  equity  of  the  plaintiff's 
case,  "as  it  were  upon  a  contract,  quasi  ex  contractu,  as  the 
Roman  law  expressed  it."  And  here  let  the  fact  be  empha- 
sized that  this  quasi-contract  is  not  what  is  often  termed  in 
English  law  an  "implied  contract,"  which  is,  as  Maine  has 
pointed  out,  a  true  contract  while  a  quasi-contract  is  not.4 
"An  implied  contract  is  one  where  the  intention  of  the  parties 
is  not  expressed,  but  an  agreement  in  fact,  creating  an  obli- 
gation, is  implied  or  presumed  from  their  acts, "  5  while  a 
quasi-contract  arises,  ex  lege,  from  voluntary  and  lawful 
acts  in  the  absence  of  an  agreement  of  any  kind.  According 
to  the  French  Civil  Code,8  "  quasi-contracts  are  those  purely 
voluntary  acts  of  man  from  which  there  results  an  obligation 

1  Dig.  44.  7.  5. 

*  Police   Jury   v.  Hampton,  5  Martin,  N.S.  389.     Cf.  Howe,  Studies  in  the 
Civil  Law,  p.  271. 

*  2  Burrows,  1005.  *  Lawson  on  Contracts,  p.  50. 

*  Ancient  Law,  p.  343.  «  Art.  1371. 


LAW  PROPER   OR  STATE  LAW  565 

towards  a  third  person,  and  sometimes  a  reciprocal  obliga- 
tion between  two  parties." 

The  statement  has  been  made  heretofore  that  obligations  Obligations 
may  arise  from   offenses  or  quasi-offenses,  a  distinction  not 
so  clearly  drawn  between  these  two  sources  in  Roman  law 
as   by  the  medieval  and  modern  civilians.     The  Institutes 
give  four  leading  examples  of  obligations  arising  ex  delicto 
or  ex  makficio,  viz.:  veluti  exfurto;  aut  rapina;  autdamno; 
ant   injuria.1      The    first  arose    from    the    unlawful   taking  Furtum. 
of  property  by  a  tortious  act,  either  open  and  manifest,  or 
secret.2    The  second,  from  the  taking  of  movables  with  vio-  Rapina. 
lence.    The  third,  from  culpable  injury  to  the  property  of  Damnum 
another  under   the   special   regulations   made   by   the   Lex 
Aquilia,  probably  about  467  u.c.,  which,  according  to  Ulpian,3 
altered  all  earlier  statutes,  as  well   the  Twelve  Tables  as 
any  other  law,  on  the  subject  of  wrongful  damage  to  the  prop- 
erty of  another.    The  fourth,  in  a  general  sense,  from  every 
breach  of  legal  duty;  in  a  specific  sense,  from  all  injuries  to 
person  and  personal  rights  of  which  the  law  would  take 
notice.    According  to  Paul  an  injury  may  be  suffered  either 
in  corpus  or  extra  corpus.*    As  examples  of  obligations  arising  Examples  of 
quasi  ex  delicto,  that  is,  from  acts  not  technically  delicta,  the  quasi  ex 
Institutes  5  refer  to  the  liability  of  a  judex  who  gave  a  delib-  ddicto- 
erately  unfair  decision;  to  that  of, the  occupier  of  a  room  who 
threw  out  of  it  something  to  the  injury  of  another;   to  that 
of  one  who  placed  or  hung  anything  over  a  public  way  in 
such  a  manner  as  to  be  a  common  danger;   and  to  that  of  a 
master  of  a  ship  or  the  keeper  of  an  inn  or  of  a  stable  for  any 

1  Inst.  4.  1.  pr. 

2  A  man  may  thus  wrongfully  take  his  own  property,  while,  for  instance,  it 
is  in  the  lawful  possession  of  his  pledgee.     Gaius,  iii.  204. 

*  Dig.  9.  2.  1.     The  Aquilian  law,  referred  to  in  the  Institutes,  4.  3,  is  com- 
mented upon  in  the  second  title  of  the  ninth  book  of  the  Digest.     A  valuable 
commentary  has  lately  been  published  upon  it  by  Dr.  Grueber,  of  the  University 
of  Oxford. 

*  Sentences  of  Paul  (Tissot),  5.  4.  1.  •  Inst.  4.  5.  pr. ;  Ibid.  1.  2.  3. 


566  THE  SCIENCE  OF  JURISPRUDENCE 

damage  or  loss  through  theft  committed  in  the  ship,  inn, 
or  stable;  "that  is,  if  it  is  not  he  himself  who  has  committed 
the  wrongful  deed,  but  some  one  employed  in  the  service 
of  the  ship,  inn,  or  stable."  As  the  principal  "is  in  fault 
in  employing  dishonest  persons  as  his  servants,  he  seems  to 
be  bound  quasi  ex  maleficio."  And  in  the  same  category 
may  be  placed  the  liability  in  Roman  law  of  the  master  for 
torts  committed  by  his  slaves;  of  the  owner  of  an  animal 
for  damage  done  in  a  manner  contrary  to  its  disposition; 
and  of  the-paterfamilias  for  torts  of  the  filius  familias.1  From 
Origin  of  such  data  were  drawn  the  general  rules  of  the  later  civil  law 
law  o™torts  on  ^is  subject,  rules  that  include  and  illustrate  a  large  part 
iTence8'  °^  ^ne  modern  law  of  torts  and  negligence  as  understood  in 
England  and  the  United  States.  In  a  case  that  occurred  in 
1894  2  Lord  Halsbury  stated  that  torts  are  divisible  into  two 
classes,  delict  and  quasi-delict,  but  he  doubted  whether  in 
dealing  with  an  English  case  a  judge  would  feel  at  liberty 
to  adopt  the  distinction.  The  correspondence  of  Lord  Hals- 
bury's  classification  with  that  of  the  Institutes  is  in  a  large 
measure  accounted  for  by  the  fact  that  English  remedial  law 
reproduced  in  its  larger  features,  in  the  course  of  its  historical 
development,  the  phenomena  that  occur  in  the  earlier  Roman 
remedial  system. 

From  the  long-lost  Institutes  of  Gaius,  recovered  in  1816, 
k  drawn  the  only  connected  account  of  the  legis  actiones,  the 
name  given  to  the  system  of  judicial  procedure  that  pre- 
vailed at  Rome  until  the  substitution  of  that  per  formulas  by 
the  Aebutian  and  Julian  laws.  In  addition  to  the  legis  actio  per 
sacramentum,  Gaius  (after  giving  an  account  of  that  per 
judicis  postulatianem,  in  a  passage  which  is  lost)  mentions  that 
per  condictionem,  that  per  manus  injectionem,  and  that  per 
pignoris  capionem.  The  most  important  of  these  five  actions 

1  Sohm,  Inst.,  p.  331. 

»  Palmer  v.  Wick,  etc.,  Steam  Shipping  Co.,  A.C.  333. 


LAW  PROPER   OR  STATE  LAW  567 

was  the  sacramentum,  —  considered  by  Maine  the  undoubted  The 

parent  of  all  the  Roman  actions  and  consequently  of  most  of 

the  civil  remedies  now  in  use  in  the  world,1  —  which  began 

with  a  feigned  combat  over  the'  property  involved,  ended  by 

the  praetor  who  interposed  the  authority  of  the  state  for  the 

preservation  of  the  peace.     The  praetor  then  referred  the 

matter  in  dispute  to  a  private  person  (judex},  who,  as  an  Functions 

arbitrator,  exercised  functions  somewhat  analogous  to  those  judex. 

of  an  English  jury.     After  it  was  settled  that  this  action 

would  lie  upon  one  particular  state  of  facts,  it  was  assumed 

to  be  necessary  that  other  debatable  causes  of  action  must 

come  into  the  same  category  or  the  action  would  not  lie. 

Thus  the  defect  of  this,  as  of  all  early  forms  of  action,  was  the 

technicality  and  literalism  with  which  it  was  applied;    the  Technicality 

slightest  error  was  fatal;   whoever  failed  in  the  smallest  item 


lost  his  case.2    That  difficulty  was  increased  by  the  fact  that 

only  Roman  citizens  could  avail  themselves  of  these  ancient 

forms.     Therefore  the  praetor  peregrinus  was  compelled,  with 

the  growth  of  the  foreign  colony  at  Rome,  to  substitute  for  Substitu- 

the  legis  actiones  a  formulary  process;    for  the  judex  of  the  formulary 

legal  system  he  substituted  the  recuperatores  or  arbitrators, 

and  did  not  undertake  to  decide  issues  himself.     For  the 

strict  formalism  of  the  actions  he  substituted  a  formula  or 

writ  containing  written  instructions  to  the  arbitrators  that, 

in  the  event  they  found  the  facts  to  be  so  and  so,  they  should 

order  the  defendant  to  do  such  and  such  acts.     The  process 

of  change  was  a  gradual  one;  as  the  gap  between  the  citizen 

and  the  alien  could  not  be  closed  in  a  day,  the  substitution 

of  the  new  for  the  old  process,  begun  by  the  lex  Aebutia,  was 

only  completed  a  century  and  a  half  later  by  the  leges  Juliae* 

1  Early  History  of  Institutions,  p.  252.  *  Gains,  Inst.  4,  30. 

*  "The  exact  effect  of  the  lex  Aebutia  and  the  leges  Juliae  is  not  clear. 
Whether,  as  Gaius  says,  those  statutes  abrogated  the  legis  actiones,  or,  as  is 
now  generally  understood,  only  introduced  the  formulary  process,  leaving  the 
older  remedies  to  their  chance  of  survival  in  competition  with  the  new,  it  is 
clear  that  by  the  time  Gaius  wrote  the  legis  actiones  were  all  but  obsolete." 
Street,  Foundations  of  Legal  Liability,  iii.  18,  note  7. 


568 


THE  SCIENCE  OF  JURISPRUDENCE 


Praetor 
empowered 
to  invent 
new  forms 
of  action. 


Subtle  use 
of  fiction  to 
create  new 
rights. 


Formulary 
system 
finally 
wiped  out 
by  Con- 
stans. 


By  the  formulary  process  the  praetor  was  endowed  with  the 
power  to  invent  new  forms  of  action,  just  as  the  English  chan- 
cellor was  at  a  later  time  permitted  to  issue  writs  in  con- 
simili  casu.  At  Rome  as  in  England  this  new  power  did  not 
involve  either  a  radical  departure  from  the  primitive  system 
or  a  disregard  of  all  form.  Under  the  formulary  process  as 
under  the  English  writ  system  the  actions  depended  on  the 
form  of  the  writ  and  were  capable  of  being  distributed  into 
different  classes  of  actions  in  the  same  manner.  But,  as  the 
formulary  process  no  less  than  the  legis  actiones  was  very 
literally  interpreted,  it  was  finally  discredited  by  the  in- 
genuity of  lawyers  and  had  to  be  laid  aside.  Not,  however, 
until  it  had  wrought  a  considerable  advance  in  the  theory 
and  practice  of  remedial  law.  In  many  instances  by  the 
subtle  use  of  fiction  the  praetor  was  able  so  to  extend  the 
ancient  remedies  as  virtually  to  create  new  rights;  he  was 
also  able  to  make  effective  various  rights  that  had  been  with- 
out remedy ;  and  he  could  recognize  as  valid  certain  defenses 
(exceptiones) ,  which  could  not  have  been  set  up  at  law.  And 
while  the  formulary  system  was  in  full  vigor  the  praetor  had 
undertaken  to  decide  certain  classes  of  cases,  without  the 
assistance  of  judex  or  arbitrator  in  proceedings,  known  as 
extraordinariae  cognitiones,  analogous  to  the  extraordinary 
jurisdiction  of  the  English  chancellor.  Under  the  Empire 
this  extraordinary  process  made  serious  inroads  on  the  for- 
mulary system  until  Diocletian,  A.D.  294,  authorized  all  pro- 
vincial magistrates  to  decide  cases  for  themselves  instead  of 
submitting  them  for  hearing  to  others.1  Finally  the  formulas 
with  their  syllabic  snares  and  pitfalls  were  entirely  wiped  out, 
A.D.  342,  by  Constans,  who  extended  the  system  of  extraor- 
dinaria  judicia  throughout  the  whole  Empire.2  Thus  were 
questions  of  form  thrust  into  the  background  and  matter  of 

1  Cod.  3.  3. 

*  "Juris  formulae,  aucupatione  syllabarum  insidiantes  cunctorum   actibus 
radicitus  amputentur."    Cod.  2.  58. 


LAW  PROPER   OR  STATE  LAW  569 

substantive  principle  brought  to  the  front  under  a  system  in 

which  magistrate  and  judge  are  henceforth  the  same  person.1  Magistrate 

To  such  a  magistrate  the  plaintiff  furnished  a  short  statement  henceforth 

of  his  case,  usually  in  writing  but  not  necessarily  so,  which  c 

was  decided,  after  the  parties  had  been  heard  by  themselves 

or  advocates,  on  the  facts  as  set  forth  in  the  statement  of  the 

cause  of  action  and  established  by  the  proof.     Through  all  Survival  of 

these  changes  in  remedial  law  the  general  principles  of  the  principles 


substantive  law  as  to  obligations  arising  from  offenses  and 
quasi-offenses  lived  on;  and  as  they  appear  hi  the  codes  of 
France,  Spain,  and  Louisiana  may  be  summarized  as  follows  : 

"1.  Every  act  of  a  man  which  causes  damage,  in  the  legal  Summary. 
sense,  to  another,  imposes  an  obligation  on  him  by  whose 
fault  it  happened  to  repair  such  damage. 

"2.  Every  person  is  thus  responsible  for  the  damage  he 
occasions,  not  merely  by  a  positive  act  of  commission,  but 
for  his  negligence,  imprudence,  or  want  of  skill,  according  to 
the  circumstances  of  the  case. 

"  3.  Every  person  is  responsible  not  only  for  his  own  wrong 
or  neglect,  but  for  the  wrongs  or  neglects  of  the  persons  in  his 
employment  or  under  his  control,  under  regulations  and  limita- 
tions established  as  matter  of  public  policy.  4.  The  owner 
of  an  animal,  even,  may,  in  certain  cases,  be  liable  for  injury 
done  by  such  animal."  2  The  Roman  jurists  clearly  under- 
stood that  he  only  causes  a  legal  injury  who  does  what  he 
has  no  right  to  do  ;  s  that  damage  may  be  done  by  such  pure 
accident  that  it  will  not  contain  the  element  of  actionable 
injury  ;  *  that  in  determining  whether  a  wrongful  act  is  the 
proximate  cause  of  an  injurious  result,  the  question  is  not 
merely  one  of  time  and  space,  but  of  immediate  and  efficient 

1  In  the  Institutes  the  term  "judex"  means  a  magistrate  deciding  a  case. 

*  Cf.  Howe,  Studies  in  the  Civil  Law,  pp.  289-300. 

1  "Nemo  damnum  facit,  nisi  qui  id  facit  quod  facere  non  habet."  Dig. 
60.  17.  155. 

4  According  to  Paul  there  is  no  actionable  injury  where  the  master  of  a  slave, 
intending  to  strike  him,  by  mere  accident  strikes  a  freeman.  Dig.  47.  10.  4. 


570 


THE  SCIENCE  OF  JURISPRUDENCE 


Roman 

phenomena 

reproduced 

in  English 

remedial 

law. 


Three 
stages  in 
the  trans- 
ition. 


Distress  as  a 
survival  of 
self-help. 


causation  in  the  juridical  sense; l  that,  in  reasoning  as  to 
proximate  cause,  its  logic  should  be  connected  with  that  of 
contributory  negligence.  According  to  the  rule  as  formu- 
lated by  Pomponius,  he  who  suffers  damage  by  his  own  fault 
is  not  considered  to  have  suffered  at  all.2 

While  there  has  been  no  copying  and  very  little  of  conscious 
imitation,  the  remedial  law  of  England  has  reproduced  sub- 
stantially the  same  phenomena  while  passing  from  an  iron 
rigorism  of  symbolic  form  to  the  comparatively  simple  pro- 
cedure of  the  present  time.  As  a  recent  inquirer  has  graphi- 
cally stated  it:  "Eleven  hundred  years  had  elapsed  since 
the  founding  of  Rome, —  a  period  sufficiently  long  to  serve  as  a 
reminder  that  Roman  law  was  not,  as  is  sometimes  supposed, 
marked  by  any  notable  rapidity  of  growth.  From  the  union 
of  the  Saxon  heptarchy  under  Ecgberht  (A.D.  1827)  to  the  pas- 
sage of  the  Judicature  Act  (A.D.  1873)  is  a  somewhat  shorter 
period,  during  which  English  remedial  law  passed  through 
approximately  the  same  stages."  8  The  three  stages  in  the 
transition  are  (1)  formalism  in  actions;  (2)  actions  based 
on  the  writ  process ;  (3)  abolition  of  forms.  While  it  cannot 
be  gathered  together  under  concise  and  suggestive  names  of 
actions,  such  as  Gaius  has  preserved  for  us,  there  is  an  abun- 
dance of  fragmentary  evidence  of  a  stage  of  strict  formalism 
in  English  law  corresponding  with  the  Roman  legis  actiones, 
a  stage  of  which  the  remedy  of  distress,  corresponding  with 
the  Roman  pignoris  capio*  has  survived  as  a  striking  illustra- 

1  See  also  Gaius,  3,  2,  11 ;  and,  on  the  same  line,  the  Nitro-glycerine  case, 
15  Wall.  524.  Cf .  Celsus,  Dig.  9.  2.  2.  7.  7 ;  Paul,  Ibid.  2.  30.  3 ;  Railroad  v. 
Kellogg,  94  U.S.  469. 

3  "Quod  quis  ex  culpa  sua  damn  urn  sen  tit,  non  intelligitur  damnum  sentire." 
Dig.  50.  17.  203.     See  also  the  example  put  by  Paul  in  his  comments  on  the 
Aquilian  law.     "  If  a  slave  were  killed  by  persons  who  were  throwing  javelins 
for  amusement,  the  Aquilian   action  would    lie.       But  if,  while  others  were 
throwing  javelins  in  a  place  devoted  to  such  exercises,  a  slave  crossed  that 
ground,  the  action  would  not  lie,  because  the  slave  should  not  have  walked 
over  the  training  field  at  an  unseasonable  time."     Dig.  9.  9.  4. 

*  Street,  Foundations  of  Legal  Liability,  iii.  21. 

4  Noted  by  Gaius,  but  without  much  detail.     Inst.  4.  26-29. 


LAW  PROPER   OR  STATE  LAW  571 

tion  of  the  antiquity  and  permanence  of  the  right  of  self-help. 

The  formalism  of  early  English  law  is  to  be  found,  however, 

not  so  much  in  the  action  as  in  its  formal  modes  of  trial  and 

proof  known  as  compurgation,  ordeal,  witnesses,  and  battle,1  —  Trial  by 

the  ceremonies  attending  the  last  bearing  an  analogy  to  the  the«ocro- 

actio  sacramenti  which  has  excited  interest.     After  the  Nor-  mentum- 

mans  had  conquered  an  island  world  in  which  judicial  power 

was  vested  in  a  series  of  local  popular  assemblies,  many  of 

which  were  private  and  feudal,  the  judicial  administration 

was  centralized  by  the  king's  writ  that  drew  into  one  central 


and  royal  court  jurisdiction  over  nearly  every  kind  of  con-  justice  and 


tention.2    As  copies  of  the  writs  penned  by  the  royal  sec- 
retary  (cancellarius)  were  preserved  and  used  as  precedents, 
their  forms  became  more  rigid;    and  after  they  had  won  a 
secure  place  on  the  registrum  brevium  they  were,  upon  the 
payment  of  the  proper  fee,  issued  to  all  applicants.     Such 
writs  as  required  in  their  framing  and  issue  magisterial  discre- 
tion (brevia  magislralia)  could  only  be  had  on  application  to 
the  chancellor  himself.     Finally  the  writs  of  which  the  chan-    chancery 
eery  thus  became  the  source  shaped  the  form  of  actions  upon  ^uj.Ce  Of 
the  common  law  theory  that  there  is  no  right  of  action  unless  wnts- 
there  is  a  recognized  form  through  which  it  may  be  enforced. 
And  so  in  England  as  at  Rome  the  transition  is  from  one  sys- 
tem of  formalism  to  another,  the  latter  being  of  a  newer  and 
higher  type.     As  at  Rome  the  legis  actiones  gave  way  to  what 
was  at  first  the  flexible  formula  of  the  praetor,  so  in  England 
"the  old  oral  and  traditional  formalism  is  in  part  supplanted  ond  for- 
and  in  part  re  enforced  by  a  written  and  authoritative  formal- 
ism."  3    Before  Glanvill  wrote  (temp.  Henry  II.)  there  could 

by  written. 

hardly  be  said  to  be  any  register,  and  hence  there  was  no  well- 

1  Cf.  Thayer,  Preliminary  Treatise  on  Evidence,    16-46,  as  to  their  history. 

2  As  to  the  centralization  of  justice  and  the  writ    process,  see  Taylor,  The 
Origin  and  Growth  of  the  English  Constitution,  I.,  316  aq. 

*  Pollock  and  Maitland,  History  of  English  Law,  ii.  558,  2d  ed. 


572 


THE  SCIENCE  OF  JURISPRUDENCE 


Henry  III. 
and  the 
golden  age 
of  forms. 


Bracton 

and  re- 
medial law. 


Equilibrium 
between 
right  and 
remedy  dis- 
turbed. 


Power  of 
chancellor 
curtailed. 


defined  body  of  writs.1  Not  until  the  close  of  the  reign  of  Henry 
III.  do  we  reach  the  golden  age  of  forms,  —  the  number  then 
actually  in  use  was  at  its  maximum.  "Very  few  of  the  writs 
that  had  as  yet  been  invented  had  become  obsolete,  and,  on  the 
other  hand,  the  common  law's  power  of  producing  new  forms 
was  almost  exhausted."  2  It  is  not  therefore  strange  that  Brac- 
ton should  have  fancied  that  in  his  time  royal  remedial  justice 
was  equal  to  then  existing  conceptions  of  legal  right;  that 
remedium  was  in  exact  equilibrium  with  jus.  He  says :  "There 
are  certain  writs  framed  upon  particular  cases  which  are 
granted  as  of  course  and  which  have  been  approved  by  the 
common  council  of  the  whole  realm;  and  these  can  by  no 
means  be  changed  without  their  consent  and  will  [i.e.  of  the 
council].  .  .  .  There  are  certain  other  [writs]  called  magis- 
tralia.  These  are  often  varied  according  to  the  varying  cir- 
cumstances of  the  cases  disclosed  in  the  pleas  of  the  plaintiff 
and  defendant."  s  There  are  writs,  he  says,  to  correspond 
with  all  rights  or  sorts  of  action.  "  Tot  erunt  formulae  brevium 
quot  sunt  genera  actionum."  That  equilibrium  between  right 
and  remedy  which  thus  appeared  to  Bracton  so  necessary 
and  permanent  was,  however,  soon  to  be  disturbed  through 
political  events.  As  a  weak  or  unscrupulous  king,  acting 
through  a  chancellor  as  his  tool,  could  easily  become  a  men- 
ace to  the  liberties  of  the  subject,  it  was  provided,  when  the 
royal  power  was  put  into  commission  by  the  Provisions  *  of 
Oxford  (1258),  that  the  chancellor  should  not  issue  writs  other 
than  those  "of  course"  without  the  approval  of  the  executive 
council  as  well  as  of  the  king.  So  determined  was  the  dispo- 

1  Some  existed,  however,  from  the  time  the  Norman  kings  first  began  to 
encroach  upon  the  communal  and  feudal  courts.  Glanvill's  book  is  written 
about  them.  See  Bigelow,  Placita  Anglo-Norman,  Introd.,  p.  xxvi ;  Register  of 
Original  Writs,  by  F.  W.  Maitland,  3  Harvard  Law  Review  107. 

3  Maitland,  Register  of  Original  Writs,  pp.  169,  175. 
»  Bracton,  413  b. 

4  For  the  history  of  the  Provisions,  see  Taylor,  The  Origin  and  Growth  of 
the  English  Constitution,  i.  401,  448,  498;    Stubbs,  Select  Charters,  p.  389. 


LAW  PROPER   OR  STATE  LAW  573 

sition  to  make  permanent  the  inhibition  thus  placed  by  the 
Provisions  on  the  power  of  the  chancery  to  issue  new  writs 
that,  hi  1285,  Parliament  deemed  it  necessary  to  make  a 
relaxation  by  providing  in  a  famous  statute  l  that  thereafter,  stat.  West. 

II    c  24 

when  no  writ  was  found  for  a  case  similar  in  its  facts  to  one  an'd  its  ' 
for  which  a  writ  already  existed,  the  clerks  should  frame  a  effect< 
writ  in  consimili  casu  with  the  existing  writ;  or,  if  the  clerks 
could  not  agree  upon  a  form,  the  matter  should  be  referred  to 
the  next  Parliament.     From  its  establishment  far  down  into 
the  reign  of  Henry  III.  the  chancery  could  issue  writs  in 
entirely  new  cases;    henceforth  it  can  issue  writs  only  in 
cases  that  are  clearly  within  the  principle  of  existing  writs, 
and  when  there  is  any  doubt,  the  matter  must  be  referred  to 
Parliament.     Passing  now  to  the  classification  of  writs  in  Bracton's 
the  common  law  system,  we  must  turn  to  Bracton,  who,  writ-  tion  of 
ing  in  the  shadow  of  Roman  law  and  using  Roman  terms,  wnts' 
says  that  all  actions  are  either  in  rem,  in  personam,  or  mixed,2 
—  divisions  that  had  evidently  filtered  from  the  Institutes 
through  the  mind  of   the  medieval  commentator  Azo,3  who 
gives  these  as  the  most  important.     According  to  the  Roman  Roman 
classification,   which  turned   upon  the   conception   of  legal 
obligation  or  duty,  the  action  in  personam  lay  against  a  par- 
ticular  person,  ascertained  either  by  the  fact  that  he  has 
made  a  contract  or  has  done  an  act  constituting  a  delict  or 
tort,  while  the  action  in  rem  lay  primarily  to  enforce  such 
rights  as  are  available  not  against  a  particular  individual  but 
against  the  whole  world,  and  derivatively  against  the  thing 
itself.     The  action  in  rem  is  therefore  either  an  impersonal 
action   or   an   action  against   the   thing  itself.    And  as  the 
Roman    law    had   its   mixed   actions,  so   English  law  was 

1  Stat.  West.  II.,  c.  24. 

2  "Sciendum  quod  omnium  actionum  sive  placitorum  (ut  inde  utatur  aequi- 
voce)  haec  est  prima  divisio,  quod  quaedam  sunt  in  rem  quaedam  in  personam 
et  quaedam  mixtae."     Bracton,  101  b. 

*  Maitland,  Bracton  and  Azo,  pp.  134  sq. 


574  THE  SCIENCE  OF  JURISPRUDENCE 

compelled  to  classify  as  mixed  certain  actions  that  partook 
Biackstone  of  the  nature  of  both.  Blackstone,1  following  the  Roman 
Roman  in-  institutional  writers,  tells  us  that  "in  England,  the  several 


*  or  remedial  instruments  of  justice,  are  from  the  subject 
of  them  distinguished  into  three  kinds  :  actions  personal,  real, 
Actions  per-  and  mixed.  Personal  actions  are  such  whereby  a  man  claims 
and  mixed,  a  debt,  or  personal  duty,  or  damages  in  lieu  thereof;  and 
likewise  whereby  a  man  claims  a  satisfaction  in  damages  for 
some  injury  done  to  his  person  or  property.  The  former  are 
said  to  be  founded  on  contracts,  the  latter  upon  torts  or 
wrongs;  and  they  are  the  same  which  the  civil  law  calls 
'actiones  in  personam,  quae  adversm  eum  intenduntur,  qui  ex 
contractu  vel  delicto  obligatus  est  aliquid  dare  vel  con- 
cedere.'  .  .  .  Real  actions  (or,  as  they  are  called  in  the 
Mirror,  feodal  actions)  which  concern  real  property  only,  are 
such  whereby  the  plaintiff,  here  called  the  demandant,  claims 
title  to  have  any  lands  or  tenements,  rents,  commons,  or  other 
hereditaments  in  fee  simple,  fee  tail,  or  term  of  life.  .  .  . 
Mixed  actions  are  suits  partaking  of  the  nature  of  the  other 
two,  wherein  some  real  property  is  demanded,  and  also  per- 
sonal damages  for  a  wrong  sustained."  If  the  question  be 
asked  why  it  was  that  a  large  part  of  the  really  English  law 
which  Bracton  undertook  to  expound  is  found  in  connection 
with  the  subject  of  real  actions,  while  in  Blackstone's  treatise 
only  the  personal  actions  are  deemed  worthy  of  attention,  the 
Dying  out  answer  must  be  that  the  former  were  dying  out.  When 
actions.  Chitty  wrote  (1808)  the  old  real  actions  were  practically 
obsolete,  and  in  the  succeeding  generation  such  vestiges  of 
them  as  remained  were  abolished  by  statute.2  The  procedure 
incident  to  their  prosecution  was  too  cumbersome.  If  right 

1  3  Com.,  pp.  117,  118. 

2  3  &  4  Will.  IV.,  c.  27,  §  36.     The  then  practically  obsolete  writs  for  the 
establishment  of  dower  rights  in  favor  of  which  that  statute  made  a  reserva- 
tion were  of  course  done  away  with  by  the  Judicature  Acts.     Cf  .  23  <fe  24  Viet., 
c.  126,  J  26. 


LAW  PROPER   OR  STATE  LAW  575 

and  remedy  had  always  been  in  such  equilibrium  as  is  indi-  Procedure 
cated  by  the  maxim  ubi  jus  ibi  remedium,  there  would  have  beraome." 
been  no  growth,  no  changes  would  have  been  necessary.     Such 
equilibrium  could  not  continue  because,  as  form  is  not  elastic, 
any  system  of  remedial  law  based  upon  its  coordination  with 
jus  must  ever  be  yielding  to  the  pressure  of  social  growth  in 
an  advancing  society.1     Down  to  the  last  years  of  Henry  III.,  Equilibrium 
which  have  been  called  the  golden  age  of  forms,  the  number  right  and 
actually  in  use  was  at  its  maximum.    As  stated  heretofore,  tu^ed^y* 
very  few  of  the  writs  that  had  as  yet  been  invented  had  become  80cial 

growth. 

obsolete,  while,  on  the  other  hand,  the  common  law's  power  of 
producing  new  forms  was  almost  exhausted.2    Under  such 
conditions  the  most  efficient  instrument  found  for  preserving 
the  balance  between  legal  right  and  remedy  was  the  action  on  influence  of 
the  case  whose  underlying  principle  supplied  a  means  for  the  the'case!1 
extension  of  the  various  remedies.      It  fertilized  all  the  old 
stocks  like  deceit,  debt,  and  detinue,  as  well  as  trespass,  giving 
new  life  to  each  of  them.    And  yet,  potent  as  was  the  influ- 
ence of  case  in  supplying  a  new  remedy  "whenever  a  new 
injury  is  done,"  s  its  growth  was  hindered  by  the  fact  that  its  growth 
all  forms  of  actions  tended  towards  finality  and  fixity  as 
English  law  became  to  be  more  and  more  a  lex  scripta.    The 
result  was  that  as  litigants  found  it  more  difficult  to  obtain 
redress  through  common  law  actions  they  began  to  appeal  Appeals  to 
by  petition  to  the  ultimate  fountain  of  justice,  to  the  king  in  * 
council.     One  of  the  leading  objects  of  dividing  the  petitions 
which  came  before  the  council  into  distinct  classes  was  to  sever 
from  the  general  mass  of  business  those  special  "matters  of 
grace  and  favor"  which  could  only  be  answered  after  reference 

1  "Before  this  can  happen,  social  pressure  must  increase  until  the  tension 
of  form  can  no  longer  resist  it.  Growth  of  remedial  law  follows,  and  cannot 
precede,  social  growth."  Street,  Foundations  of  Legal  Liability,  iii.  48. 

'The  Statute  of  Westminster  II.  begins  with  the  recital:  "Considering 
that  divers  of  this  realm  are  disinherited  by  reason  of  the  fact  that  in  many 
cases  where  remedies  should  have  been  had,  there  is  none  provided." 

3  3  Blackstone,  p.  123. 


576 


THE  SCIENCE  OF  JURISPRUDENCE 


Beginning 
of  independ- 
ent equit- 
able juris- 
diction. 


Ashby  v. 
White 
stimulates 
action  on 
the  case. 


to  the  king  in  person.  When,  early  in  the  reign  of  Edward  III., 
the  chancellor  ceased  to  follow  the  court  as  one  of  the  royal 
retinue,  his  tribunal  began  to  acquire  a  more  distinct  and 
substantive  character.  And  from  the  twenty-second  year 
of  that  reign,  in  which  all  petitions  of  grace  and  favor  were 
recognized  as  his  province,  his  separate  and  independent  equit- 
able jurisdiction  began  to  grow  in  power  and  importance,1  by 
which  must  be  understood  "the  extraordinary  interference 
of  the  chancellor,  without  common  law  process,  or  regard  to 
common  law  rules  of  proceeding,  upon  the  petition  of  the 
party  grieved,  who  was  without  adequate  remedy  in  a  court 
of  common  law."  2  Stimulated  by  the  rivalry  resulting  from 
the  growth  of  the  new  jurisdiction,  the  law  judges  began  to 
perceive  that  if  more  attention  was  given  to  the  action  on  the 
case  there  would  be  less  occasion  to  resort  to  chancery,3  until 
finally,  in  Ashby  v.  White,4  Holt,  C.J.,  boldly  maintained  in  a 
dissenting  opinion  that  prevailed  in  the  House  of  Lords,  that 
case  may  be  used  to  redress  a  legal  wrong  though  the  par- 
ticular facts  may  never  have  arisen  before.  "It  is  not," 
said  he,  "the  novelty  of  the  action  that  can  be  argued  against 
it,  if  it  can  be  supported  by  the  old  grounds  and  principles  of 
law."  While  trial  by  jury  has  no  doubt  largely  contributed  to 
the  same  result,  there  can  be  no  doubt  that  the  survival  of 
the  common  law  forms  of  action  to  our  own  time  has  been 
largely  due  to  the  principle  embodied  in  the  action  on  the 
case  whereby  the  ancient  remedies  have  been  extended.  "  One 
who  casts  his  eye  over  the  field  of  English  remedial  law  during 
the  five  hundred  years  which  ends  with  the  passage  of  the 

1  See  Taylor,  The  Origin  and  Growth  of  the  English  Constitution,  i.  250,  citing 
Rot.  Glaus.,  38  Edw.  III.;  Hardy,  Close  Rolls,  i.,  Pref.  xxxiii. 

z  Campbell's  Lives,  i.  7. 

*  In  1481  Fairfax,  J.,  speaking  of  the  action  on  the  case  upon  assumpsit,  said 
that  if  more  attention  were  given  to  its  extension  there  would  be  less  occasion 
to  resort  to  chancery.  Y.B.  21  Edw.  IV.,  23,  pi.  6. 

4  Holt,  K.B.  524 ;  2  Ld.  Raym.  938,  1  Bro.  P.C.  45  (in  House  of  Lords), 
also  14  How.  St.  Tr.  695. 


LAW  PROPER   OR  STATE  LAW  577 

Judicature  Acts  will  thus  see  two  great  factors  working  in  TWO  great 
entirely  different  fields  for  the  extension  of  that  law.     In  the 
equitable  forum  is  the  conception  of  the  single  civil  action  as 
a  sufficient  instrument  for  the  redress  of  all  grievances  of 
which  that  court  has  jurisdiction.     In  the  legal  forum  we  see 
the  principle  embodied  in  the  action  on  the  case,  fertilizing 
the  old  stocks  and  causing  them  to  put  forth  anew."  l    And 
yet,  potent  as  were  these  agencies,  directed  to  a  common  end 
in  different  fields,  they  proved  to  be  inadequate.     A  time 
came  when,  in  England  as  in  Rome,  the  evolution  of  reme- 
dial law  culminated  in  the  final  abolition  of  the  forms  of  action  Final  aboii- 
and  in  the  establishment  of  the  action  on  the  facts  of  the  case,  forms  of 
The  chief  difficulty  that  arose  in  England  out  of  a  complex  a 
system   of   tribunals,   administering   different   codes   of  law 
through  widely  different  methods  of  procedure,  was  that  em- 
bodied in  the  conflict  between  law  and  equity,  whose  diver- 
gences were  so  great  that  it  was  often  said  that  a  litigant 
might  be  pronounced  clearly  right  on  one  side  of  Westminster 
Hall  and  clearly  wrong  on  the  other.    In  1850  a  royal  commis-  Royal  com- 

mission  of 

sion  appointed  to  consider  the  reform  of  the  law  courts  finally  1350. 
reported  that  "a  consolidation  of  the  elements  of  a  complete 
remedy  in  the  same  court  was  obviously  desirable,  not  to  say 
imperatively  necessary,  to  the  establishment  of  a  consistent 
and  rational  system  of  procedure."  To  accomplish  that  end 
was  enacted  the  Supreme  Court  of  Judicature  Act  of  1873,2  judicature 
which  provided  that  the  courts  enumerated  therein  "shall 
be  united  and  consolidated  together,  and  shall  constitute, 
under  and  subject  to  the  provisions  of  this  act,  one  Supreme 
Court  of  Judicature  in  England."  Thus  was  finally  accom- 
plished that  fundamental  reform  of  procedure  both  in  the 
Court  of  Chancery  and  in  the  Courts  of  Common  Law,  which 
had  been  the  constant  aim  of  Bentham  and  his  followers, 
through  the  establishment  of  a  single  court  in  every  division 

1  Street,  Foundations  of  Legal  Liability,  iii.  54.          2  36  &  37  Viet.,  c.  66. 
2p 


578 


THE  SCIENCE  OF  JURISPRUDENCE 


Distinction 

between 

legal  and 

equitable 

rights 

preserved. 


Substantive] 
law  un- 
altered. 


A  legal 

right 

analyzed. 


Persons  the 
subjects  of 
rights  and 
duties. 


of  which  every  kind  of  right  known  to  the  law  of  England  is 
recognized,  and  where  every  kind  of  remedy  for  the  enforce- 
ment of  rights  may  be  obtained.1  There  was  no  attempt  to 
abolish  the  distinction  between  legal  and  equitable  rights. 
While  equity  ceased  to  exist  as  an  independent  system,  it 
bequeathed  its  principles  to  the  system  into  which  it  was  ab- 
sorbed. The  terms  "legal"  and  "equitable"  are  worked 
into  the  fiber  of  all  legal  thought.  The  cardinal  purpose 
of  the  great  reform  was  not  to  create  new  rights,  but  to 
give  a  new  means  of  enforcing  the  old,  through  the  aboli- 
tion of  legal  forms  and  the  consolidation  of  legal  and  equitable 
modes  of  procedure.2  In  the  application  of  the  new  remedial 
system  the  principle  is  accepted  as  fundamental  that  the  legis- 
lation in  question  did  not  intend  or  attempt  to  alter  the  sub- 
stantive law  at  all.  In  England  as  at  Rome,  adjective  law, 
after  assisting  substantive  law  to  a  state  of  independence,  is 
severed  from  it  and  passes  into  the  background.  In  the 
course  of  legal  evolution  procedure  loses  its  primitive  im- 
portance; the  ancient  forms  of  action  give  way  to  a  single 
civil  action  on  the  facts  as  an  instrument  for  the  enforcement 
of  legal  and  equitable  rights. 

In  analyzing  such  a  right  as  substantive  law  creates  and 
defines,  Holland  resolves  it  into  four  elements:  (1)  the  per- 
son entitled;  (2)  the  object;  (3)  the  act  of  forbearance; 
(4)  the  person  obliged.  The  first  and  last  terms  in  the  series 
describe  persons,  —  the  former  being  the  person  in  whom  the 
right  resides,  the  latter  the  person  against  whom  the  right  is 
available.  Persons  are  thus  the  subjects  of  duties  as  well  as 
of  rights.  For  the  benefit  of  persons  duties  are  created,  and 
it  is  on  persons  that  duties  are  imposed.  Such  persons  are, 

1  Cf.  Dicey,  Law  and  Opinion  in  England,  pp.  206-207. 

2  British  South  Africa  Co.  v.  Companhia  De  Mocambique  (1893),  A.C.  602; 
Macdonald  v.  Tacquah  Gold  Mines  Co.,  13    Q.B.D.  535,   539;    Westbury-on- 
Severn  Rural  Sanitary  Authority  v.  Meredith,  30  Ch.  D.  387 ;  Lattin  v.  McCarty, 
41  N.Y.  107. 


LAW  PROPER   OR  STATE  LAW  579 

in  contemplation  of  law,   either  normal  or  abnormal.    A 
normal  person  must  be,  not  a  monster,1  but  a  human  being 
born  alive  (vivus)*    For  certain  purposes  existence  begins 
before  birth.     "An  infant  in  ventre  sa  mere  is  supposed  to  be 
born  for  many  purposes.     It  is  capable  of  having  a  legacy, 
or  a  surrender  of  a  copyhold  estate  made  to  it."  3    A  normal  A  normal 
person  must  be  such  a  human  being  as  is  regarded  by  law  as  * 
capable  of  rights  and  duties,  or,  to  use  a  Roman  term,  as 
having  a  status,  which  was  not  possessed  by  a  slave  who  had  status  in 
not,  as  such,  either  rights  or  liabilities.    On  the  day  of  his  man-  iaw. 
umission,  according  to  Modestinus,  "incepit  statum  habere  "  ;  * 
before  manumission,  as  we  read  in  the  Institutes,  "  nuttum  caput 
habuit."  5    In  Roman  law  the  idea  of  legal  personality  was 
summed  up  in  the  word  caput,  which,  going  beyond  mere  Caput. 
status,  signified  personality  of  the  complete  or  ideal  kind,  a 
conception  that  was  the  source  of  the  rules  worked  out  as  to 
the  loss  or  impairment  of  its  privileges,  or  as  to  the  diminu- 
tion of  the  honor  in  which  it  was  held.     According  to  Paulus,  in 
this  ideal  personality  was  embodied  liberty,  citizenship,  and 
family,6  elements  that  might  be  unpaired  or  lost  in  three  ways. 
Whether  a  person  is  capable  of  all  the  rights  and  duties  defined  upon  what 
by  law  must  depend  upon  the  freedom,  the  sex,  the  sanity,  depends! 
the  maturity,  the  citizenship,  and  the  like  of  the  individual 
under  the  laws  of  the  sovereignty  by  which  such  capacities 
are  defined.     The  normal  person  is  therefore  a  natural  person 
who  is  sui  juris  and  as  such  endowed  with  full  capacity  for  ^  ab_ 
all  rights  and  duties  recognized  by  law.     Abnormal  persons  normal 
are  either  natural  or  artificial.     An  abnormal  natural  person  person. 

1  Dig.  1.  5.  14.  1.  16.  38.  »  Ibid.  1.  16.  129. 

*  1  Blackstone,  130.     Paulus  says,  "Qui  in  utero  est  perinde  ac  si  in  rebus 
humanis    esset   custoditur,    quotiens    de  commodis  ipsius  partus  quaeritur. " 
Dig.  1.  5.  7.  *Dig.4.5.4.  •  1.  16. 

•  Dig.  4.  5.  11.     The  first,  capitis  deminutia  maxima,  was  the  loss  of  liberty, 
as  where  a  Roman  citizen  became  a  slave  by  condemnation  for  crimes;    the 
second  was  capitis  deminutio  media,  or  loss  of  citizenship  simply ;  the  third,  or 
minima,  resulting  from  separation  from  the  agnatic  family. 


680 


THE  SCIENCE  OF  JURISPRUDENCE 


An  abnor- 
mal artifi- 
cial person. 


Roman 
conception 
of  a  cor- 
poration. 


Public  and 
private. 


Necessity  of 

legislative 

recognition. 


is  one  in  the  enjoyment  of  an  exemption  or  under  a  disability, 
as  an  infant,  feme  covert,  lunatic,  criminal,  alien,  a  person  in 
certain  professions,  as  a  soldier  or  barrister,  a  person  in  a  state 
of  slavery,  or  a  person  who  has  suffered  civil  death  by  entering 
into  religion.  An  abnormal  artificial  person  is  an  ideal  being 
created  by  law,  a  legal  entity  capable  as  such  of  possessing 
certain  rights  and  incurring  certain  liabilities.  As  conquest 
and  expansion  were  followed  by  municipal  organization,  the 
Roman  conception  of  a  corporation  as  a  juristic  person  dis- 
tinct from  any  of  its  members  became  more  and  more  defined. 
Under  the  refining  hand  of  the  Antonine  jurists,  in  some  cases 
the  emperor,  in  others  the  magistrate,  was  considered  in  his 
official  capacity  as  a  juristic  personality,  in  harmony  with  the 
English  doctrine  of  a  corporation  sole.  That  a  juristic  per- 
sonality might  be  of  the  public  kind  was  attested  by  the  state 
itself,  called  in  its  proprietary  capacity  fiscus,  and  by  the 
municipal  corporations.  That  it  might  be  of  the  private 
kind  was  attested  by  various  collegia  and  corpora,  which  were 
considered  as  universities,  such  as  pontifical  colleges,  ancient 
companies  of  artisans,  and  industrial  societies.1  In  addition 
must  be  mentioned  mutual  benefit 2  and  burial  societies,  and 
political  and  social  clubs,  under  strict  police  control.  What- 
ever may  have  been  the  rule  in  earlier  times  as  to  state  recog- 
nition as  a  prerequisite  to  juristic  personality,  the  later 
Roman  law  certainly  required  that  a  corporation  must  be 
established  or  recognized  by  legislative  authority,  general  or 
special.  The  right  to  organize  such  a  body,  Gaius  declares, 
is  not  permitted  to  every  one;  the  matter  must  be  governed 
by  statute,  decree,  or  imperial  constitution.3  When  thus  con- 

1  See  Warner  v.  Beers,  23  Wend.  (N.Y.)  103,  122,  for  a  clear  statement  of 
early  Roman  law  on  this  subject. 

*  In  1701  there  was  found  at  Rome  a  documentary  report  of  a  protracted 
suit  (lis  futtonum)  against  an  association  of  fullers  with  regard  to  water  rates. 
Salkowski,  p.  56. 

*"  Neque  societas,  neque  collegium,  neque  hujusmodi  corpus,  passim  omni- 
bus habere  conceditur:  nam  et  legibus  et  senatusconsultis  et  principalibus 
constitutionibus  ea  res  coercetur."  Dig.  3.  4.  1.  pr. 


LAW  PROPER   OR  STATE  LAW  581 

stituted  the  juridical  entity  became  distinct  from  any  of  the 
natural  persons  that  composed  it;  they  were  exempt  from 
its  obligations,  which  were  corporate  obligations.  Ulpian 
says :  "If  anything  be  owed  to  a  universitas,  it  is  not  owed  to 
the  individual  members;  and  the  individual  members  do  not 
owe  what  is  due  by  the  universitas."  l  Or,  as  Marcian  ex- 
plains, the  property  of  a  city  belongs  to  the  community  itself, 
and  not  to  any  individual  within  it.2  The  classical  jurists  immortality 
perfectly  understood  that  the  juristic  person  would  still  exist  ternaf  gov 
after  all  its  members  had  changed,  or  even  when  the  number  emment- 
became  reduced  to  one.  As  those  who  were  permitted  to 
form  a  corporation  were  supposed  to  have  created  a  miniature 
republic,  then,  as  now,  in  the  absence  of  a  contrary  rule,  its 
action  was  to  be  governed  by  a  majority  of  the  corporators.8 
The  corporate  character  thus  imparted  to  a  group  of  persons 
was  extended  finally  to  a  mass  of  property  devoted  to  pious 
uses,  the  totality  being  known  as  pia  causa,  a  foundation  that  Pia 
began  a  wider  development  after  the  accession  of  the  Chris- 
tian emperors.4  From  that  source  has  been  drawn  many  of 
the  rules  that  regulate  every  establishment  instituted  for 
religious  and  charitable  purposes,  for  the  relief  of  necessitous 
persons,  or  for  the  advancement  of  science.  From  that 
source  the  doctrine  of  pious  uses  appears  to  have  flowed  into 
the  law  of  England,  and  to  some  extent  into  that  of  the  United 
States.  As  under  Roman  law  retroactive  state  recognition 
might  be  given  to  such  institutions,  it  has  been  settled  here 
that  a  valid  bequest  or  devise  may  be  made  for  pious  uses  to 

1  Dig.  48.  18.  1.  7,  §  1.  »  Ibid.  1.  8.  6.  1. 

3  Such  is  the  opinion  of  Ulpian.  Dig.  50.  17.  160.  Gains  says  :  "For  those 
who  are  permitted  to  have  a  corporation,  it  is  proper,  after  the  example  of  a 
republic,  to  have  common  property,  a  common  exchequer,  and  a  representative 
or  syndic,  by  whom,  as  in  a  republic,  what  ought  to  be  done  in  common  may 
be  done."  Dig.  1.  8.  1. 

*  When  authorized  by  the  state,  such  foundations  are  considered  as  moral 
persons ;  and  it  seems  that  such  authority  might  be  so  given  after  their  estab- 
lishment as  to  have  a  retroactive  effect.  Mackeldey,  Roman  Law,  §  157. 


582  '  THE  SCIENCE  OF  JURISPRUDENCE 

A  succession  a  legal  entity  to  be  established  by  the  state  after  the  testator's 
entity!**  death.1  The  idea  of  juridical  personality  in  the  nature  of  a 
foundation  has  also  been  extended  to  those  complex  masses 
of  rights  and  duties,  sometimes  treated  as  property,  which 
cluster  around  a  man  as  a  result  of  the  various  circumstances 
of  his  life,  and  which  are  transferred  from  him,  so  far  as  they 
are  capable  of  transfer,  by  some  form  of  universal  succession.2 
As  a  totality  or  estate  it  consists  of  all  the  rights  and  liabilities 
of  the  deceased,  and  as  such  it  may  acquire  new  rights  and 
incur  new  liabilities.  While  this  theory  has  been  combated 
by  Savigny  and  Sohm,  the  latter  admits  that  it  is  the 
view  most  generally  accepted.8  In  England  and  the  United 
States,  as  at  Rome,  all  corporate  organization  rests  upon  state 
authority;  and  everywhere  the  ideal  conception  of  the  juristic 
person  is  expressed  in  substantially  the  same  terms.  By  an 
English  and  English  court  we  are  told  that  "A  corporation  aggregate  of 
definitions,  many  is  invisible,  immortal,  and  rests  only  in  intendment 
and  consideration  of  law.  It  has  no  soul,  neither  is  it  subject 
to  the  imbecilities  of  the  body;"  4  by  an  American,  that  "A 
corporation  is  an  artificial  being,  invisible,  intangible,  and 
existing  only  in  contemplation  of  law.  Being  the  mere  crea- 
ture of  law,  it  possesses  only  those  properties  which  the 
charter  of  its  creation  confers  upon  it,  either  expressly  or  as 
an  incident  to  its  very  existence."  5 

Adjective  Having  now  examined  all  the  vital  elements  that  enter  into 
substantive  private  law,  reference  must  be  made  to  what  has 
heretofore  been  termed  adjective  private  law  or  procedure. 
That  part  of  positive  law  which  defines  and  thereby  creates 
rights  is  substantive  law ;  that  part  which  provides  a  method 
for  their  protection  and  enforcement  is  adjective  or  remedial 

1  Inglis  v.  Trustees  of  Sailors'   Snug    Harbor,  3  Peters  100,  139 ;  Milne  v. 
Milne,  17  La.  46.     Cf.  Howe,  Studies  in  the  Civil  Law,  p.  158. 

*  Described   by  the  phrases    "succedere  per  universitatem, "   "in    universa 
bona."  (Dig.  12.  2.  8),  "adquirere  per  universitatem"  (Gaius,  2.  97). 

1  Sohm,  Inst.,  p.  421.  «  The  case  of  Button's  Hospital,  10  Rep.  32  b. 

•  Dartmouth  College  v.  Woodward,  4  Wheat.,  p.  636. 


LAW  PROPER   OR  STATE  LAW  583 

law.     The  fact  has  been  heretofore  emphasized  that,  distinct  Distinction 
and  familiar  as  the  division  now  is  between  substantive  and  substantive 


adjective  law,  it  is  very  recent  in  origin.  In  the  early  stages 
of  legal  growth  the  two  elements  appear  to  be  inseparable, 
It  has  been  said  that  substantive  law  was  born  of  procedure, 
being  secreted,  as  Maine  has  expressed  it,  in  the  interstices  of 
form.1  And  yet  it  is  impossible  to  accept  the  views  of  those 
writers  who  intimate  that  an  elaborately  organized  procedure 
may  precede  a  clear  recognition  of  the  rights  it  is  intended  to 
protect.  In  answering  the  contention  that  law  is  concerned  Law  not 
more  with  remedies  than  with  rights,  Holland  declares  that  monf  with 


"It  would  be  as  reasonable  to  say  that  a  field  consists  in  its  rfmedi?f, 

*  than  with 

hedges  and  ditch  rather  than  in  the  space  of  land  which  these  rights. 

inclose.     In  point  of  fact,  a  right  must  be  recognized  at  least 

as  soon  as,  if  not  before,  the  moment  when  it  is  fenced  around 

with    remedies."  2      In    archaic   law   the   substantive   rules 

defining  rights  are  from  the  outset  enveloped  in  formalism 

of  procedure,  and  as  the  tribunals,  from  time  to  time,  make 

changes  in  such  rules,  they  appear  to  be  modifying  only  the 

methods  through  which  they  are  enforced.      Thus  it  may  be 

said  that  adjective  law  assists  substantive  law  to  a  state  of  Howadjec- 

independence  as  in  the  course  of  legal  development  procedure 

sinks  into  the  background  and  loses  its  primitive  importance. 

As  a  comparative  study  has  been  made  already  of  that  pro-  tive- 

cess  as  worked  out  at  Rome  and  in  England,  it  need  not  be 

repeated  here.     Suffice  it  to  say  that  before  the  authority 

of  the  state  is  established,  —  as  in  the  heroic  age  of  Greece 

which  is  characterized  by  "the  omnipotence  of  private  force, 

tempered  and  guided  by  family  sympathies,  and  the  practical 

nullity  of  that  collective  sovereign  afterwards  called  the  City,"  * 

—  the  injured  person  could  obtain  from  the  wrongdoer  only 

such  compensation  as  might  be  exacted  through  an  act  of 

revenge.    That  unsatisfactory  means  of  redress  known  as 

1  See  above,  p.  523.      *  Jurisprudence,  p.  348.      »  Qrote,  History,  ii.  126. 


584 


THE  SCIENCE  OF  JURISPRUDENCE 


Self-help. 


How  re- 
strained by 
political 
authority. 


Teutonic 
remedial 
law. 


Distress  aa 
a  judicial 
remedy. 


self-help  is  not  superseded  by  judicial  process  until  the  cor- 
porate person  of  the  organized  state  has  the  power  to  impose 
its  arbitrating  power  upon  the  contestants.  "  For  a  long  time 
law  was  very  weak,  and  as  a  matter  of  fact  it  could  not  prevent 
self-help  of  the  most  violent  kind.  Nevertheless,  at  a  fairly 
early  stage  in  its  history  it  begins  to  prohibit  in  uncompro- 
mising terms  any  and  every  attempt  to  substitute  force  for 
judgment."  l  Or,  as  Maine  has  expressed  it,  "the  Common- 
wealth at  first  interfered  through  its  various  organs  rather  to 
keep  order  and  see  fair  play  in  quarrels,  then  took  them,  as 
it  now  does  always  and  everywhere,  into  its  own  hands."  2 
At  first  self-help  is  not  abolished ;  it  is  simply  restrained  and 
supervised  by  political  authority.  Distress  may  still  be 
resorted  to,  but  only  for  certain  purposes,  and  with  many 
safeguards  against  abuse.  As  Roman  law  developed  rapidly, 
distress  had  become  a  thing  of  the  past  by  the  time  of  Gaius, 
and  later  authorities  take  no  notice  of  it.  As  Teutonic 
remedial  law,  on  the  other  hand,  developed  with  painful  slow- 
ness the  elimination  of  self-help  involved  a  longer  process. 
Nevertheless  the  process  had  so  far  advanced  prior  to  the 
advent  of  feudalism  that  Bigelow,  after  looking  to  the  testi- 
mony of  the  ancient  codes  and  custumals,  sees  in  distress  a 
truly  judicial  remedy.  To  use  his  own  words :  "  But  whether 
private  distress  once  prevailed  or  not,  it  is  certain  that  from 
the  time  when  the  Germanic  nations  first  appear  in  legal 
history  until  the  period  of  which  we  are  writing,  distraint 
between  freemen  of  the  same  gau,  hundred,  or  (later)  munici- 
pality, was  lawful  only  when  effected  under  judicial  author- 
ity." 3  Thus  in  the  end  distress  was  lawful  only  when  sanc- 
tioned by  state  authority;  the  redress  of  wrongs  must  be 
sought  only  from  the  tribunals  of  the  sovereign.4  As  we  have 

1  Pollock  and  Maitland,  History  of  English  Law,  ii.  574,  2d  ed. 

*  Early  History  of  Institutions,  Lect.  ix. 

»  History  of  Procedure,  pp.  202,  203. 

«  Cf.  the  edict  of  Marcus  Aurelius,  Dig.  48.  7.  7. 


LA  IV  PROPER   OR  STATE  LAW  585 

seen  heretofore,  the  first  stage  is  marked  by  actions  character- 
ized by  an  iron  rigorism  of  symbolic  form;    the  second,  by 
actions  based  on  the  writ  process  ;  the  third,  by  the  abolition 
of  forms.     While  concerned  primarily  with  the  rights  of  pri-  Relation  of 
vate  litigants,  adjective  law  touches  at  several  points  that  pri^ateUw 
part  of  public  law  which  regulates  the  constitution  of  courts  to  PubUc- 
and  the  duties  of  judicial  officers  through  those  rules  that 
determine  (1)  the  jurisdiction  in  which  the  remedy  is  to  be 
sought;   (2)  the  process  through  which  the  judicial  machinery 
is  to  be  set  in  motion  prior  to  judgment,  and  finally  (3)  the 
physical    means   by    which   such   judgment    is    to    be   en- 
forced. 

7.  The  consideration  heretofore  given  to  the  division  of  Public  law. 
law  into  private  and  public,  a  division  arising  out  of  the 
character  of  the  persons  with  whom  a  right  is  connected, 
resulted  in  the  conclusion  that  when  both  of  the  persons  with 
whom  a  right  is  connected  are  private  persons,  the  law  regu- 
lating such  a  right  is  "private"  law;   that  when  one  of  the 
persons  with  whom  a  right  is  connected  is  the  state,  and  the 
other  a  private  person,  the  right  is  public,  and  the  law  regu- 
lating such  a  right  is  "public"  law.    As  in  public  law  the  Rights  and 
state  is  not  only  arbiter,  but  is  also  one  of  the  parties  inter-  g^tT^  ^t* 
ested,  the  fact  has  been  recognized  that  the  state,  or,  as  it  own  courte- 
is  usually  called,  the  sovereign,  has  not  only  duties,  but  also 
rights  properly  so  called,  enforcible  in  its  own  courts  under 
laws  of  its  own  making.      When  that  peculiar  element  of 
public  law,  governing  the  rights  and  remedies  of  a  state  in 
its  own  courts  as  a  quasi-private  personality,  is  deducted, 
what  remains  may  be  grouped  under  three  heads:    (1)  con- 
stitutional law;    (2)  administrative  law;    (3)  criminal  law,  constitu- 
substantive  and  adjective.     And  yet  constitutional  law  in 


its  widest  sense  embraces  the  entire  outer  shell  of  the  state  tive-  and 

criminal 

in  which  the  administrative  and  criminal  law  are  included,  law. 
Administrative  law  has  been  defined  to  be  "the  exercise  of 


586 


THE  SCIENCE  OF  JURISPRUDENCE 


Administra- 
tive law 
defined. 


Primary 
function  of 
constitu- 
tional law. 


Constitu- 
tional limi- 
tations. 


Division  of 
functions. 


political  powers  within  the  limits  of  the  constitution," l 
or  as  "the  functions,  or  the  activity,  of  the  sovereign  power."  2 
And  so  criminal  law,  substantive  and  adjective,  revolves 
within  a  circle  which  the  constitution  of  the  state  defines. 
The  primary  function  of  constitutional  law  is  to  ascertain 
where  the  supreme  power  (suprema  potestas) 3  of  a  state, 
as  embodied  in  its  "internal  sovereignty,"  resides.  As  that 
sovereign  part  of  the  state  is  omnipotent,  and  as  such  the 
source  of  law,  its  acts  can  never  be  illegal.  In  ascertaining 
the  political  center  of  gravity  of  any  given  state  heed  must 
be  given  to  the  fact  whether  its  constitution  is  an  unwritten 
body  of  custom  as  in  England,  or  one  of  those  written  enact- 
ments of  fundamental  principles  which  have  come  into  being 
since  the  assertion  of  the  "rights  of  man"  prior  to  the  French 
Revolution.  Distinct  among  constitutions  of  the  latter 
class  are  those  that  embody  the  American  invention  known 
as  constitutional  limitations  on  legislative  power.  That 
invention  embodies  the  fundamental  difference  which  divides 
two  kindred  political  systems,  the  one  resting  on  the  sover- 
eignty of  the  people  as  expressed  in  written  constitutions, 
the  other  on  the  sovereignty  of  Parliament.  As  king,  lords, 
and  commons  are  in  the  one  system  the  source  of  law,  their 
acts  can  never  be  illegal,  and  never  in  any  strict  or  proper 
sense  unconstitutional.  But  as  hi  America  the  people  are 
recognized  as  the  source  of  law,  no  enactment  of  a  legislature, 
state  or  federal,  is  valid  if  it  contravenes  a  provision  of  a 
written  constitution  forbidding  its  existence.4  In  both  the 
English  and  American  constitutional  systems  the  idea  of  the 
division  of  the  functions  of  government  into  executive, 
legislative,  and  judicial,  which  dates  back  to  the  time  of 

1  Ahrens,  Cours  de  droit  naturel,  ii.  380. 
1  Putter,  ap-ud  Holtzendorff,  System,  p.  695. 

1  Or,  as  Aristotle  called  it,  ri>  Kiipiov  TTJ*  v6Xewj.     Polit.  iii.  10.  1. 
*  For  a  detailed  statement  with  the  authorities,  see  Taylor,  Jurisdiction  and 
Procedure  of  the  Supreme  Court  of  the  United  States,  pp.  1-36. 


LAW  PROPER   OR  STATE  LAW  587 

Aristotle,1  is  a  dominant  one.    The  importance  of  such  a 
division  was  impressed  upon  the  modern  world  by  Montes-  Montes- 
quieu, who  did  little  more  than  describe  the  peculiar  form  c- 
in  which  it  appeared  in  the  English  system.2    The  English 
states  in  America  adopted  the  maxim  in  the  same  qualified 
sense  in  which  it  was  understood  in  the  mother  country. 
When  speaking  on  that  subject,   Madison  said:    "On  the  Madison's 
slightest  view  of  the  British  constitution  we  must  perceive 
that   the   legislative,   executive,   and   judiciary   department 
are  by  no  means  totally  separate  and  distinct  from  each 
other."     Speaking  of  the  constitution  of  the  states,  he  said: 
"If  we  look  into  the  constitutions  of  the  several  states,  we 
find  that,  notwithstanding  the  emphatical,  and    in  some  in- 
stances the  unqualified  terms  in  which  the  axiom  has  been 
laid  down,  there  is  not  a  single  instance  in  which  the  several 
departments  of  power  have  been  kept  absolutely  separate 
and  distinct."3    It  is  the  province  of  constitutional  law  to  Province  of 
regulate  all  these  details,  and  to  prescribe  how  the  cardinal  tfoTaUaw. 
powers  shall  be  distributed  and  exercised  in  constitutional 
systems,    no    matter    whether    republican    or    monarchical. 
As  it  fixes  the  succession  to  a  throne,  so  it  regulates  the  elec- 
tion of  a  president;    as  it  marks  out  the  geographical  area 
over  which  the  sovereignty  of  a  state  extends,  so  it  defines 
the  persons  who  are  subject  to  its  authority.     Every  con-  Flexible  and 
stitution  prescribes  the  method  of  its  amendment,  whether 
as  in  the  English  system  by  an  ordinary  act  of  Parliament, 
or  by  the  slow  and  complicated  processes  prescribed  by  the 
provisions  of  American  constitutions,  state  and  federal.4 

Administrative  law,   "the  total  concrete  and  manifoldly 
changing  activity  of  the  state  in  particular  cases,"  5  is  said  to  tive 

1  Polit.  iv.   11.  1.  a  Spirit  of  Laws,  xi.,  c.  6. 

*  Federalist,  No.  xlvi.,  p.  335. 

4  As  to  the  difference  between   "flexible"  and   "rigid"  constitutions,   see 
Bryce,  Studies  in  History  and  Jurisprudence,  pp.  136-167. 

*  Bluntschli,  Die  Lehre  vom  modernen  Stoat,  iii.  465. 


588 


THE  SCIENCE  OF  JURISPRUDENCE 


Aucoc's 
definition. 


Dicey 's 

statement. 


Divergence 
of  French 
from  Eng- 
lish con- 
ceptions. 


embrace,  in  its  widest  sense,  the  administration  of  justice, 
the  making  and  promulgation  of  laws,  the  conduct  of  the 
government  in  regulating  its  foreign  relations,  the  manage- 
ment of  the  property  and  business  transactions  of  the  state, 
and  the  working  generally  of  the  complicated  machinery 
through  which  the  state  provides  for  the  general  welfare. 
Aucoc  defines  it  to  be  "the  body  of  rules  which  regulate  the 
relations  of  the  administration  or  of  the  administrative  au- 
thority towards  private  citizens"; *  and  in  his  work  on  droit 
administratif  he  says:  "Administrative  law  determines  (1) 
the  constitution  and  the  relations  of  those  organs  of  society 
which  are  charged  with  the  care  of  those  social  interests 
(inttr§ts  collectifs)  which  are  the  object  of  public  adminis- 
tration, by  which  term  is  meant  the  different  representatives 
of  society,  among  which  the  state  is  the  most  important,  and 
(2)  the  relation  of  the  administrative  authorities  towards  the 
citizens  of  the  state."  2  Under  these  somewhat  vague  terms 
is  embodied  "that  portion  of  French  law  which  determines 
(i.)  the  position  and  liabilities  of  all  state  officials,  and  (ii.) 
the  civil  rights  and  liabilities  of  private  individuals  in  their 
dealings  with  officials  as  representatives  of  the  state,  and  (iii.) 
the  procedure  by  which  these  rights  and  liabilities  are  en- 
forced." 3  Such  ideas  differ  radically  from  English  concep- 
tions, first,  because  they  rest  upon  the  assumption  that  the 
government  and  each  of  its  servants  possesses  a  body  of 
special  rights  and  privileges  as  against  private  citizens  which 
are  to  be  fixed  on  principles  different  from  those  defining  the 
legal  rights  and  duties  of  one  citizen  towards  another ;  second, 
because  they  assume  that  the  ordinary  tribunals  have,  speak- 


1  "On  le  de'finit  ordinairement  1 'ensemble  des  regies  qui  rdgissent  les  rap- 
ports de  1 'administration  ou  de  l'autorit<5  administrative  avec  les  citoyens." 
Droit  Administratif,  i.,  s.  6.  2  Ibid. 

*  Dicey,  The  Law  of  the  Constitution,  pp.  309-333.  Prior  to  that  great  work 
very  little  had  been  written  in  English  as  to  the  wide  meaning  given  to  the 
term  "administrative  law"  as  understood  upon  the  Continent. 


LAW  PROPER   OR  STATE  LAW  589 

ing  generally,  no  concern  with  administrative  law  (droit 
administratif),  which  is  administered  by  administrative  courts 
(tribunaux  administratif s) ,  at  the  head  of  which  stands  the 
Council  of  State.  If  a  policeman  in  France  who  has  broken 
into  a  monastery,  seized  its  property,  and  expelled  its  inmates 
is  charged  with  what  English  lawyers  would  call  trespass 
and  assault,  he  pleads  his  exemption  while  acting  under 
government  orders  in  the  execution  of  its  decree  dissolving 
certain  religious  societies.  If  his  right  to  be  tried  before  an 
administrative  tribunal  is  questioned  by  an  attempt  to  bring 
him  before  an  ordinary  civil  tribunal,  a  "conflict"  arises  when  a 
which  cannot  be  settled  by  an  ordinary  judge  under  the  or- 


anses. 


dinary  law  of  the  land.    The  case  must  go  to  a  court  for 
deciding   conflicts    of    jurisdiction    (Tribunal  des  Conflicts), 
whose  business  it  is  to  uphold  the  principle  laid  down  in  the 
earlier  stages  of  the  Revolution  and  still  recognized  as  valid 
by  French  law,  that  "administrative  bodies  must  never  be  French  ad- 
troubled  in  the  exercise  of  their  functions  by  any  act  whatever 
of  the  judicial  power."  l    It  thus  follows  that  a  party  wronged 
in  France  by  an  official  must  seek  relief,  not  from  the  ordi-  control, 
nary  judges  under  the  law  of  the  land,  but  from  some  official 
court.     It  appears  that  no  officer  who  has  executed  the  orders 
of  his  superiors,  without  any  malicious  or  corrupt  motive, 
can  be  made  civilly  responsible  for  his  conduct.    As  against 
that  principle  stands  the  cardinal  rule  of  English  law  that  Account- 
every  official,  from  the  prime  minister  down  to  a  petty  con-  officials0 
stable  or  tax  collector,  is  under  the  same  responsibility  for 
every  act  done  without  legal  justification  as  any  other  citizen, 
which  responsibility  is  to   be  ascertained  hi  the  ordinary 
tribunals  under  the  law  of  the  land.2    In  the  English  language 
there  is  no  satisfactory  equivalent  for  the  phrase  droit  admin- 

1  See  Aucoc,  Droit  Administratif,  B.  24. 

*  Mostyn   v.    Fabregas,  Cowp.  161;   Governor  Wall's  Case,  28  St.  Tr.  51; 
Entick  v.  Carrington,  19  St.  Tr.  1030;    Phillips  v.  Eyre,   L.R.  4  Q.B.  225. 


590 


THE  SCIENCE  OF  JURISPRUDENCE 


No  droit  ad- 
ministratif 
in  the 
United 
States. 


United 
States  v. 
Lee. 


No  man 
above  the 
law. 


istratif  for  the  simple  reason  that  the  thing  itself  has  never 
been  recognized.  When  Tocqueville  visited  the  United  States 
he  was  not  slow  to  perceive  that  no  such  principle  entered 
into  the  structure  of  American  democracy.  In  1831  he  wrote 
to  a  French  judge  for  an  explanation  not  only  of  the  contrast 
between  French  and  American  institutions  in  this  regard, 
but  also  for  an  authoritative  statement  of  the  general  ideas 
(notions  generates)  governing  the  droit  administratif  of 
France.1  In  the  famous  case  of  United  States  v.  Lee,2  an 
ineffectual  attempt  was  made  to  assert  in  this  country  the 
existence  of  the  French  theory  of  administrative  law.  In 
the  words  of  the  court,  "The  counsel  for  plaintiffs  in  error 
and  in  behalf  of  the  United  States  assert  the  proposition, 
that  though  it  has  been  ascertained  by  the  verdict  of  the 
jury,  in  which  no  error  is  found,  that  the  plaintiff  has  the 
title  to  the  land  in  controversy,  and  that  what  is  set  up  in 
behalf  of  the  United  States  is  no  title  at  all,  the  court  can 
render  no  judgment  in  favor  of  the  plaintiff  against  the  de- 
fendants in  the  action,  because  the  latter  hold  the  property 
as  officers  and  agents  of  the  United  States,  and  it  is  appropri- 
ated to  lawful  public  uses."  The  court  answered  in  the  ma- 
jestic tones  of  Mr.  Justice  Miller  that  "No  man  in  this  country 
is  so  high  that  he  is  above  the  law.  No  officer  of  the  law  may 
set  that  law  at  defiance  with  impunity.  All  the  officers 
of  the  government,  from  the  highest  to  the  lowest,  are 
creatures  of  the  law  and  are  bound  to  obey  it.  It  is  the  only 
supreme  power  in  our  system  of  government,  and  every  man 
who,  by  accepting  office,  participates  in  its  functions,  is  only 
more  strongly  bound  to  submit  to  that  supremacy,  and  to 
observe  the  limitations  which  it  imposes  upon  the  exercise 
of  the  authority  which  it  gives.  Courts  of  justice  are  estab- 
lished not  only  to  decide  upon  controverted  rights  of  the 
citizens  as  against  each  other,  but  also  upon  rights  in  con- 

1  See  Tocqueville,  Oeuvres  Completes,  vii.,  p.  66.  a  106  U.S.  196. 


LAW  PROPER   OR  STATE  LAIV  591 

troversy  between  them  and  the  government,  and  the  docket 
of  this  court  is  crowded  with  controversies  of  the  latter  class." 
As  understood  in  England  and  America,  the  term  "  administra-  Administra- 
tive  law"  must  be  accepted  in  that  narrow  and  specific  sense  ^derstood 
in  which  it  is  confined  to  such  subjects  as  the  collection  of  * 
revenue,  the  protection  of  the  coinage  and  the  inspection  of  America, 
weights  and  measures,  the  recruitment  and  equipment  of  the 
army  and  navy,  the  government  of  colonies  and  dependencies, 
the  collection  of  statistics,  the  enforcement  of  sanitary  pre- 
cautions, the  regulation  of  prisons  and  asylums,  the  supervi- 
sion of  roads,  railways,  telegraphs,  and   canals,  the  main- 
tenance of  museums  and  libraries,  and  the  organization  of 
schools.    When  conflicts  arise  between  citizens  and  the  public 
officials  who  are  charged  with  the  administration  of  such  laws, 
they  are  settled,  not  in  official  courts,  but  in  the  ordinary 
tribunals  under  the  law  of  the  land. 

If  the  boundary  between  civil  and  criminal  jurisdiction  Criminal 
existed  at  Rome  at  all,  it  was  very  faintly  defined.  Roman 
law  continued  to  treat  to  the  last  as  civil  delicts  acts  now 
regarded  exclusively  as  crimes.  If  a  conclusion  may  be 
drawn  from  the  position  they  held  in  the  later  jurisprudence, 
theft  and  robbery  were  regarded  not  as  public  but  as  private 
wrongs.1  The  power  of  punishment  exercised  in  early  times  its  early 
by  the  king  and  the  comitia  centuriata  was  shared  in  later 
times  by  the  senate.  While  in  cases  of  special  importance 
the  comitia  and  senate  exercised  their  powers  directly,  it 
was  usually  delegated  in  each  case  to  a  magistrate  or  a  body 
of  commissioners.  Such  commissioners  (quaestors)  were 
appointed  at  first  for  particular  cases,  and  afterwards  for 
particular  classes  of  cases.2  The  series  of  statutes  by  which  Permanent 
quaestiones  perpetuae  were  instituted  for  the  trial  of  particular 
classes  of  crimes  wherever  committed,  beginning  with  the 

1  Cf.  Muirhead,  Roman  Law,  p.  69. 

1  There  are  traces  in  very  early  times  of  standing  quaestores  parricidii. 
Ortolan,  Explication  Historique  des  Institute,  i.  182-183. 


592 


THE  SCIENCE  OF  JURISPRUDENCE 


lexCal- 
purnia, 
B.C.  149. 


How  Roman 
criminal 
law  was 
built  up. 


Judicia 
extraordif 


Teutonic 
conception 
of  crime. 


But  and  wite 
in  Old- 
English 
law. 


lex  Calpurnia,  B.C.  149,  continued  until  a  number  of  courses 
of  conduct  had  been  from  time  to  time  branded  as  criminal.1 
Each  standing  commission  was  established  by  a  special  law, 
and  consisted  of  a  praetor  chosen  annually,  assisted  by  a  sort 
of  jury,  sometimes  as  many  as  100  judices,  who  were  sum- 
moned for  each  particular  case.  By  such  courts,  by  the 
Roman  legislative  assemblies,  and  afterwards  by  the  Em- 
perors, was  produced,  in  the  course  of  centuries,  a  body  of 
law  relating  to  the  definition  of  crimes  and  also  to  the  pro- 
cedure for  their  punishment,  the  comments  upon  or  the  frag- 
ments of  which  fill  two  books  of  the  Digest  (47th  and  48th) 
and  one  (the  9th)  of  the  Theodosian  Code.  The  large  and  form- 
less body  of  rules  thus  produced  drew  scarcely  anything  from 
the  wisdom  of  the  famous  jurisconsults  who  illumed  every 
branch  of  private  law.  The  legislation  of  the  Emperors, 
which  superseded  the  questiones,  followed  the  lines  of  the  old 
criminal  statutes,  while  substituting  for  them  the  simpler 
procedure  of  the  judicia  extraordinaria.  In  the  days  of  Jus- 
tinian Roman  lawyers  divided  crimes  into  three  classes, 
according  to  the  manner  in  which  they  were  prosecuted; 
namely,  publica  judicia,  extraordinaria  crimina,  and  privata 
delicta.2  In  the  Teutonic  world  as  at  Rome,  even  violent 
wrongs  were  viewed  as  concerning  almost  exclusively  the 
person  injured,  to  whom  atonement  (compositio)  was  to  be 
made  in  the  form  of  damages.  When  the  idea  gained  ground 
that  wrongdoing  might  injure  not  only  the  individual  but 
also  the  state,  an  additional  compensation  was  provided  for 
the  sovereign.  Thus  in  Old-English  law  bot  was  the  compen- 
sation due  to  the  person  injured  by  a  crime,  while  wite  was 
the  fine  paid  to  the  king  or  other  lord  in  respect  of  an  offense.3 

1  Cf.  Maine,  Ancient  Law,  ch.  v. 

3  Cf.  Stephen,  History  of  the  Criminal  Law  of  England,  i.  11-12. 

3  Many  of  the  laws  abound  in  provisions  fixing  the  wer  of  different  classes  of 
people,  and  the  bot  due  in  particular  cases.  The  wer  is  mentioned  in  the  laws 
of  William  (1.  7.  9;  Thorpe,  i.  471),  in  the  Leges  Henriti  Primi  (Thorpe,  i.  581) 
and  in  Henry  I.'s  Charter  to  the  citizens  of  London  (Select  Charters,  108). 


LAW  PROPER  OR  STATE  LAW  593 

As  Roman  criminal  law  never  assumed  such  a  juristic  form  as 
made  it  capable  of  general  adaptation,  the  Teutonic  nations 
were  driven  to  original  legislation,  the  first  great  attempt 
being  represented  by  the  Constitutio  Criminalis  Carolina  of  Constiiu- 
the  Emperor  Charles  V.,  who  attempted  to  provide  a  criminal  naiis  Caro- 
law  for  the  whole  Empire.     During  the  latter  half  of  the  hna' 
eighteenth  century  followed  the  compilation  of  the  national 
codes  for  Austria,  Bavaria,  and  many  other  German  states 
that  paved  the   way   for  the   penal   code  of   all  Germany, 
Strafgesetzbuch  fur  das  Deutsche  Reich,  which  became  effec- 
tive in  1872.     In  the  Latin  world  stands  forth  the  "Code  Penal  codes 
pe"nal"   which  became  law  for  France  in  1810,  and  which,  Lid  France! 
as  a  result  of  French  conquest,   passed  into  Italy,  Sicily, 
Holland,  Belgium,  the  Rhine  Provinces,  Poland,  and  Switz- 
erland.    While  the  dream  that  has  existed  since  the  time 
of    Bentham,   of  the    codification  of  the  law  of  England, 
has  not  been  realized,  the  penal  code  drafted  by  Lord  Ma- 
caulay  for  British  India  in  1834  was  promulgated  in  1860.  Penaicode 
In  the  United  States  a  great  work  was  done  by  Edward 
Livingstone,  who  in  1821  was  appointed  by  the  legislature 
of  Louisiana  to  construct  a  new  code  of  criminal  law  and  Living- 
procedure,  since  widely  known  in  Europe  and  America  as 
the   "Livingstone   Code."    Prepared   in   both   French   and 
English,  it  was  at  once  reprinted  in  England,  France,  and 
Germany,  attracting  wide  interest  by  its  remarkable  vigor 
and  simplicity,  and  more  especially  by  reason  of  its  philo- 
sophic provisions,  which  have  notably  influenced  the  penal 
legislation  of  several  countries.     "Though  the  State  for  which 
the  codes  were  prepared,"  says  Chief  Justice  Chase,  "neglected 
to  avail  itself  of  the  labors  assigned  and  solicited  by  itself, 
they  have  proved,  together  with  their  introductions,  a  treas- 
ure of  suggestions  to  which  many  states   are  indebted  for 
useful  legislation."    The  body  of  modern  criminal  law  thus 
built  up  is  divided  into  substantive  criminal  law  and  adjective 

2Q 


594 


THE  SCIENCE  OF  JURISPRUDENCE 


Divisions  of 
modern 
criminal 
law. 


Offenses 
against  the 
state. 


Against 
individuals. 


Hesem- 

blance  of 
criminal  to 
civil  pro- 
cedure in 
England. 


criminal  law  or  procedure,  the  former  consisting  of  two  parts, 
a  general  and  a  particular.  The  more  general  part  deals  with 
such  subjects  as  involve  the  nature  of  the  criminal  act;  the 
responsibility  of  the  wrongdoer  on  the  ground  of  intention 
or  negligence;  the  extent  to  which  an  artificial  person  may 
be  criminally  responsible;  facts  which  negative  criminal  re- 
sponsibility, such  as  tender  age,  compulsion,  idiocy,  lunacy,  or 
drunkenness;  facts  which  justify  an  act  otherwise  criminal, 
such  as  self-defense,  and  the  like;  while  the  special  part 
contains  a  classification  of  criminal  acts,  and  specific  pro- 
visions with  regard  to  the  penal  consequences  of  each.  The 
typical  modern  criminal  code  divides  its  list  of  offenses  into 
those  directly  committed  against  the  state,  —  such  as  tend 
to  the  subversion  of  the  government,  such  as  interrupt  its 
friendly  relations  with  foreign  powers,  such  as  disturb  the 
public  order  or  obstruct  the  course  of  justice,  such  as  debase 
the  coinage,  and  the  like,  —  and  those  affecting  primarily 
individuals,  —  such  as  violence  to  the  person  in  its  various 
degrees,  defamation  of  character,  offenses  against  family 
rights,  and  offenses  against  possession  and  ownership.  That 
body  of  rules,  whereby  the  machinery  of  the  courts  is  set  in 
motion  for  the  punishment  of  offenders,  known  as  adjective 
criminal  law,  bears  in  England  a  strong  resemblance  to  the 
stages  of  procedure  in  private  law,1  —  a  resemblance  far 
slighter  on  the  Continent,  where  the  influence  of  the  "inquisi- 
torial" method  introduced  into  Germany  by  the  Constitutio 
Criminalis  Carolina  still  dominates. 


1  For  a  working  out  of  the  analogy,  see  Holland,  Jurisprudence,  pp.  375  sq. 


CHAPTER  VIII 

LAW  BY  ANALOGY,  OR  INTERNATIONAL  LAW 

1.  The  essence  of  the  definition  heretofore  given  of  law  Not  en- 
proper  or  positive  law  was  embodied  in  the  statement  that  a°8overeign 
it  is  enforcible  by  a  sovereign  political  authority.    A  law  ^hority 
properly  so  called  is  a  command  from  a  sovereign,  an  order 
issued  by  a  superior  to  an  inferior,  and  "the  party  to  whom 
it  is  directed  is  liable  to  evil  from  the  other,  in  case  he  comply 
not  with  the  desire."  l    Because  they  do  not  proceed  from 
a  sovereign  political  authority  armed   with  the  power  to 
enforce  them,  the  set  of  understandings  called  international 
law  are  not  such  in  the  full  or  proper  sense  of  the  term,  they 
are  only  law  by  analogy.2    The  contention  of  what  is  known 
as  the  transcendental  school  that  international  law  is  positive  claims  of 
law  rests  upon  the  general  assumption  that  not  only  does  it  8Cendentai 
flow  from  a  transcendental  source,  but  that  it  has  all  the  scho°1- 
qualities  of  positive  law  imparted  by  a  lawgiver,  —  command, 
and  the  power  to  enforce  the  command.     In  mitigation  of  the 
conclusion  that  such  law  is  binding  upon  all  nations,  proprio 
vigore,  ingenious  refinements  are  indulged  in  by  one  sect  to 
prove  that  it  must  be  adopted  by  the  conscious  act  of  each 
independent  community,  while  another  claims  that  a  tacit 
assent  may  be  presumed  from  the  acts  of  governments  in 
their  mutual  dealings.3    The  following  extracts  from  well- 

1  Austin,  The  Province  of  Jurisprudence  Determined,  Lect.  1. 

*  For  that  reason  what  is  called  international  law  has  been  assigned  by  Austin 
a  place  in  his  positive  morality  alongside   of  those  customary  rules  observed 
among  mankind  for  whose  breach  no  authoritative  punishment  can  be  inflicted. 
Ibid.  i.  147-148. 

*  See  the  elaborate  opinions  of  Lord  Coleridge,  C.J.,  and  of  Cockburn,  C.J., 
in  The  Queen  v.  Keyn,  L.R.,  2  Exchequer  Division,  pp.  63-239. 

695 


596  THE  SCIENCE  OF  JURISPRUDENCE 

known  authors  will  be  given  as  typical  expositions  of  the 
general  theory,  without  the  special  qualifications  through 
which  some  of  them  have  attempted  to  limit  it  or  explain 
it  away.  Puffendorf ,  a  disciple  of  Grotius  who  went  beyond 
his  master,  assuming  that  the  natural  jus  gentium  is  included 
in  the  wider  science  of  jus  naturale,  accepted  Hobbes's  state- 

Puffendorf's  ment  that  "the  natural  law  may  be  divided  into  the  natural 
law  of  men,  and  the  natural  law  of  states,  commonly  called 
the  law  of  nations."  *  Beyond  that  Puffendorf  declares  "there 
is  no  other  voluntary  or  positive  law  of  nations  properly 
invested  with  a  true  legal  force,  and  binding  as  the  command 

Vattei's;  of  a  superior  power."  2  Vattel,  the  disciple  of  Wolf,  who 
believed  that  the  law  of  nations  was  the  natural  law  applied 
to  international  affairs,  avers  that  "we  call  that  the  necessary 
law  of  nations  which  consists  in  the  application  of  the  law  of 
nature  to  nations.  It  is  necessary  because  nations  are  abso- 
lutely bound  to  observe  it.  This  law  contains  the  precepts 
prescribed  by  the  law  of  nature  to  states  on  whom  the  law 
is  not  less  obligatory  than  on  individuals.  .  .  .  This  is  the 
law  which  Grotius,  and  those  who  followed  him,  called  the 
internal  law  of  nations,  on  account  of  its  being  obligatory  upon 

Haute-  nations  in  point  of  conscience."  3  Hautefeuille  declares  that 
"international  law,  then,  has  its  foundation  in  the  divine  or 
primitive  law;  it  is  from  this  source  that  it  entirely  flows. 
By  the  help  of  this  law  alone,  I  firmly  believe  that  it  is  not 
only  possible  but  easy  to  regulate  all  the  relations  which 
exist,  or  which  can  exist  between  the  peoples  of  the  world. 
This  common  and  positive  law  contains  all  the  rules  of  justice; 
it  exists  independently  of  all  legislation,  of  all  human  insti- 
tutions. It  rules  peace  and  war,  and  traces  out  in  every 
position  of  affairs  their  rights  and  duties."  *  Even  Bluntschli 

1  De  Give,  c.  xiv,  §  4.        *  De  Jure  Naturale  et  Gentium,  II.,  c.  iii.,  §  23. 

*  Droit  des  Gens,  Preliminaires,  §  7. 

4  Dee  Droits  et  des  Devoirs  des  Nations  Neutres,  Introd. 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW     597 

declares  that  "the  law  of  nations  is  that  recognized  universal  Blunt- 
law  of  nature  which  binds  different  states  together  in  a  hu- 
mane jural  society,  and  which  also  secures  to  the  members 
of  different  states  a  common  protection  of  law  for  their 
general  human  and  international  rights."  l    Such  are  fair 
examples  of  the  formulas  in  which  the  old  transcendental 
school  has  been  accustomed  to  contend,  (1)  that  international 
law  finds  its  origin  in  some  superhuman  source;    (2)  that  by 
virtue  of  its  origin  it  is  really  positive  law,  unchangeable, 
and  binding  upon  all  nations  without  expressed  or  implied 
assent  upon  their  part.    The  first  assumption  has  been  as-  Why  the 
sailed  both  by  the  analytical  and  historical  schools,  and  has 
been  rejected  by  both  because  it  is  at  once  unnecessary, 
unscientific,  and  unhistorical.    The  second  assumption,  that  rejected, 
international  law  is  positive  law,  was  broken  down  long  ago 
under  the  principles  laid  down  by  Austin,  who  defines  law,  Austin's 
"in  the  most  general  and  comprehensive  acceptation  in  which 
the  term,  in  its  literal  meaning,  is  employed,"  to  be  rules  of 
conduct  "laid  down  for  the  guidance  of  an  intelligent  being 
by  an  intelligent  being  having  power  over  him."    Under 
that  definition  are  embraced  "  (a)  Laws  set  by  God  to  Men, 
styled  Laws  of  God,  or  Divine  Laws,  and  (6)  Laws  set  by  Men 
to  Men."     Laws  of  the  latter  class  are  set  by  authors,  deter- 
minate or  indeterminate,  and  are  accordingly  laws  proper  or 
improper.     "The  matter  of  jurisprudence  is  positive  law; 
law,  simply  and  strictly  so  called;    or  law  set  by  political 
superiors  to  political  inferiors." 2    The  essence  of  Austin's 
quaint  and  pedantic  description  of  positive  law  is  that  it  why 
must  be  a  command,  armed  with  a  definite  sanction,  issuing  i"0n™^aw 
from  a  determinate  author,  —  a  "law  set  by  political  su-  ^lu^  from 
periors  to  political  inferiors."     International  law  is  thus  ex-  the  d<>main 

•  of  P0 

eluded  from  the  domain  of  positive  law  because  its  mandates  law. 

1  Das  Volkerrecht,  §  1. 

*  The  Province  of  Jurisprudence  Determined,  Lect.  1. 


598 


THE  SCIENCE  OF  JURISPRUDENCE 


Interna- 
tional law 
as  "law  of 
the  land." 


Mansfield. 


Marshall. 


The  state 
and  its 
external 
sovereignty. 


do  not  issue  from  a  common  superior  armed  with  power 
to  enforce  obedience.  As  a  publicist  of  our  own  has  well 
stated  it:  "The  province  of  international  law  may  be  de- 
scribed as  a  province  halfway  between  the  province  of  morals 
and  the  province  of  positive  law.  It  is  law  without  a  forceful 
sanction."  l  Of  course  whenever  any  particular  state  adopts 
a  part  of  international  law  as  "  the  law  of  the  land,"  it  becomes 
to  that  extent  positive  law,  because  enforcible  by  the  po- 
litical authority  of  that  sovereignty.  In  the  famous  case  of 
The  Queen  v.  Keyn  it  was  held  that  such  rules,  in  order  to  be 
binding  as  state  law,  must  be  assented  to,  as  in  the  case  of 
Great  Britain,  by  an  act  of  Parliament  or  the  judgment  of  a 
competent  tribunal.  The  "privilege  of  foreign  ministers 
and  domestic  servants  depends  upon  the  law  of  the  nations. 
The  act  of  Parliament  of  7  Anne,  c.  12,  is  declaratory  of  it. 
All  that  is  new  in  this  act  is  the  clause  which  gives  a  summary 
jurisdiction  to  the  punishment  of  the  infractors  of  the  law."  2 
"If  it  be  the  will  of  the  government  to  apply  to  Spain  any 
rule  respecting  captures  which  Spain  is  supposed  to  apply 
to  us,  the  government  will  manifest  that  will  by  passing  an 
act  for  the  purpose.  Till  such  an  act  be  passed,  the  court  is 
bound  by  the  law  of  nations,  which  is  a  part  of  the  law  of 
the  land."  3 

2.  The  statement  has  been  made  heretofore  that  apart  from 
its  internal  sovereignty,  inherent  in  the  people  as  a  whole,  and 
vested  in  its  rulers  by  virtue  of  its  constitutional  law,  every 
state  possesses  an  external  sovereignty  consisting  of  its  rights 
as  an  independent  political  community  to  deal  with  all  others 
of  its  class  upon  equal  terms  under  the  rules  called  inter- 
national law.  The  international  system  rests  upon  the  as- 
sumption, first,  that  each  state  is  sovereign  and  independent, 

1  Woodrow  Wilson,  The  State,  p.  628. 

2  Lord  Mansfield,  Triquet  v.  Bath  (1764),  3  Burrows,   1478. 

»  Marshall,  C.J.,  The  Nereide  (1815),  9  Cranch  388,  423.  Cf.  Moore,  Interna- 
tional Law  Digest,  vol.  i.,  §  2,  entitled  "Part  of  the  Law  of  the  Land." 


LAW  BY  ANALOGY,    OR  INTERNATIONAL  LAW      599 

and  as  such  coequal  with  all  the  rest;   second,  that  territory 

and  jurisdiction  are  coextensive.1    By  the  sweeping  away  Sover- 

of  the  transcendental  theory  of  the  origin  of  international 

law,  and  by  the  consequent  severance  of  its  connection  with 

what  is  generally  known  as  divine  law,  the  existing  system 

of  rules  now  regulating  the  intercourse  of  nations  can  find 

no  other  basis  upon  which  to  rest  than  that  embodied  in  the 

alternative  proposition  of  Grotius,  which  declares  that  the  Alternative 

law  of  nations  derives  its  authority  from  the  unanimous  of  Grotius!1 

approbation  of  all,  or,  at  least,  of  many  nations;   its  proofs 

are  continued  usage  and  the  testimony  of  the  jurisperiti* 

The  states  that  compose  what  is  called  "the  family  of  na-  states  as 

tions"  are  in  their  corporate  capacity  moral  beings,  clothed  j^^ 

with  all  the  rights  and  duties  that  pertain  to  the  individual 

members  of  which  they  are  composed.    As  Pinheiro-Ferreira 

has  well  expressed  it:   "The  sole  difference  there  is  between 

citizens  united  in  a  single  state  and  the  different  peoples 

of  the  earth  is  that  for  a  settlement  of  their  differences  they 

first  resort  to  the  decisions  of  their  own  legislators  and  judges, 

while  the  second  rarely  submit  to  such  methods,  preferring 

to  adjust  their  conflicts  by  an  appeal  to  force.    And  yet  as 

no  one  will  maintain  that  might  makes  right,  it  must  be  ad- 

mitted that,  prior  to  the  employment  of  force,  there  were 

rights  on  the  one  hand  and  duties  on  the  other.     It  is  these 

rights  and  duties,  outside  of  the  sphere  of  force  and  legislation, 

that  constitutes  what  is  called  the  law  of  nations."  3    In  the  intema- 

words  of  Bulmerincq,4  international  law  "is  the  totality  of 


legal  rules  and  institutions  which  have  developed  themselves  b^  ?ul~ 

merincq  ; 

touching  the  relations  of  states  to  one  another"  ;  in  the  words 

1  Taylor,  International  Public  Law,  pp.  197,  206. 

2  "Latius  autem  patens  est  jus  gentium,  id  est  quod  gentium  omnium  aut 
multarum   voluntate  vim   obligandi   accepit.  .  .  .     Probatur   autem   hoc   jus 
gentium  pari  modo  quo  jus  scriptum  civile,  usu  continuo  et  testimonio  perito- 
mm."     De  Jure  Belli  ac  Pads,  I.,  c.  i.,   §   14. 

»  Cf.  Calvo,  Le  Droit  International,  pp.  93-94. 

4  Das  Volkerrecht  (in  Marquardsen's  Handbuch,  vol.  i.),  §  1  of  the  monograph. 


600 


THE  SCIENCE  OF  JURISPRUDENCE 


By  Cairns ; 


By  Cole- 
ridge. 


A  normal 
inter- 
national 
person. 


Its  attri- 
butes and 
responsi- 
bilities. 


Territory 
and  juris- 
diction co- 
extensive. 


of  Professor  Cairns,  "international  law  is  the  formal  expres- 
sion of  the  public  opinion  of  the  civilized  world  respecting  the 
rules  of  conduct  which  ought  to  govern  the  relations  of  inde- 
pendent nations,  and  is,  consequently,  derived  from  the 
source  from  which  all  public  opinion  flows,  —  the  moral  and 
intellectual  convictions  of  mankind."  *  Lord  Coleridge  has 
said  that  "the  law  of  nations  is  that  collection  of  usages  which 
civilized  states  have  agreed  to  observe  in  their  dealing  with 
one  another."  2  A  state  which  enjoys  full  external  sover- 
eignty, and  is  a  recognized  member  of  the  family  of  nations, 
is  a  normal  international  person.  So  soon  as  its  separate 
national  existence  is  recognized  it  enters  at  once  into  the  full 
enjoyment  of  sovereignty  as  a  corporate  person  endowed 
not  only  with  the  right  to  perpetuate  its  existence  by  an  un- 
broken succession  of  new  members,  but  with  the  attributes 
and  responsibilities  incident  to  "moral  persons,  having  a  public 
will,  capable  and  free  to  do  right  and  wrong,  inasmuch  as 
they  are  collections  of  individuals,  each  of  whom  carries  with 
him  into  the  service  of  the  community  the  same  binding  law  of 
morality  and  religion  which  ought  to  control  his  conduct  in  pri- 
vate life."  3  Such  a  sovereign  has  the  right  to  claim  independ- 
ence of  and  equality  with  all  others  of  its  class,  and  to  exercise 
jurisdiction  throughout  its  territory.  The  postulate  is  funda- 
mental that  territory  and  jurisdiction  are  coextensive.  With 
a  few  exceptions  a  sovereign  state  has  jurisdiction  over  all 
persons  and  things  within  its  territorial  limits,  and  in  some 
instances  such  jurisdiction  over  both  extends  beyond  its  limits 
and  thus  becomes  exterritorial.  Among  the  several  attributes 
of  sovereignty  may  also  be  noted  the  rights  of  a  state  to 

1  Quoted  in  Dana's  notes  to  Wbeaton's  Elements,  p.  23. 

2  The  Queen   v.  Keyn,    L.R.,    2  Exchequer  Division,  p.  154.     The  author 
has  denned  international  law  to  be  "the  aggregate  of  rules  regulating  the  inter- 
course of  states,  which  have  been  gradually  evolved  out  of  the  moral  and  intel- 
lectual convictions  of  the  civilized  world  as  the  necessity  for  their  existence 
has  been  demonstrated  by  experience."     International  Public  Law,  p.  86. 

a  Maine,  International  Law,  p.  33. 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW      601 

maintain  diplomatic   intercourse  with  other  states,  to  make  Several 
treaties  with  them,  and,  under  certain  exceptional  conditions,  Of  sover- 
to  intervene  in  their  external  affairs.     Against  the  exceptional  eignty- 
and  extraordinary  right  of  intervention  stands  the  normal 
right  of  every  state  to  manage  its  own  affairs,  internal  and 
external,  without  interference.     It  is  the  privilege  of  every 
state  to  adopt  any  form  of  government  it  deems  best  suited 
to  its  internal  wants  and  conditions,  and  its  identity  is  never 
lost  so  long  as  its  corporate  existence  survives.     While  that 
is  preserved  neither  internal  revolutions  nor  alienations  of 
parts  of  its  territory  can  diminish  any  of  its  rights  or  dis- 
charge it  from  any  of  its  obligations.     The  life  of  a  state  is 
not  extinguished  even  by  the  temporary  suspension  during 
a  civil  war  of  its  authority  over  those  who  owe  it  allegiance. 
As  a  state  is  a  moral  person  with  susceptibilities  and  with  a  A  state's 
character  as  such  to  maintain,  it  is  claimed  that  another  one  refutation, 
of  its  attributes  is  the  right  of  reputation,  which  no  one 
should  attempt  by  deed  or  word  to  injure  or  take  away.1 

3.  As  each  sovereign  state  is  supreme  within  its  territorial  Why  types 
limits,  with  its  internal  political  constitution  no  other  state 
has  the  normal  right  to  interfere.  International  law  deals 
solely  with  a  state's  external  relations  and  not  with  its  in- 
ternal  organization.  Each  state  as  a  corporate  body  binds 
itself  through  the  acts  of  the  governmental  agents  estab- 
lished and  authorized  by  its  own  constitution.  No  other 
state  has  the  right  to  dictate  who  such  agents  shall  be  or  how 
they  shall  be  constituted;  it  can  only  satisfy  itself  as  to  the 
fact  that  such  agents  have  been  duly  constituted  and  that 
they  are  acting  within  the  limits  of  their  authority.  Thus 

1  In  1799  certain  English  subjects,  prosecuted  for  libel  on  Paul  I.  of  Russia, 
were  punished  by  fine  and  imprisonment;  and  in  1803  an  English  court  con- 
victed Jean  Peltier,  a  French  refugee,  for  libeling  Napoleon,  then  First  Consul. 
See  Phillimore,  i.  447.  A  state  is  not  bound  to  take  away  from  the  press  or 
private  citizens  the  right  to  criticise  both  foreign  states  and  their  sovereigns, 
—  those  who  abuse  the  right  being  subject  to  responsibility  according  to  the 
laws  of  the  state  to  which  they  belong. 


602 


THE  SCIENCE  OF  JURISPRUDENCE 


Sover- 
eign 
states 
divided 
into  five 
classes. 


A  personal 
union. 


the  administrators  of  every  state  are  forced  for  their  own  pro- 
tection to  examine  the  constitutions  of  all  the  states  with 
which  they  deal  so  as  to  be  sure  that  those  who  represent 
them  are  not  acting  ultra  vires.1  For  that  reason  a  brief  review 
should  be  made  of  the  several  typical  forms  of  state  organiza- 
tion existing  in  the  world  to-day. 

4.  Normal  international  persons  or  sovereign  states  are 
divided  into  five  classes.  The  tendency  which  has  manifested 
itself  in  Europe  during  the  last  thirty  or  forty  years  to  build 
up  great  nationalities,  through  the  incorporation  of  smaller 
states  in  more  strictly  organized  wholes,  has  brought  about 
some  notable  internal  political  changes,  especially  in  the  con- 
stitutions of  Germany,  Italy,  and  Austria-Hungary.  With 
such  changes  clearly  in  view  the  statement  may  be  made, 
that  the  corporate  entities  known  to  international  law,  which 
act  as  independent  and  sovereign  units  when  dealing  with 
other  states,  are  (1)  single  or  organic  bodies  like  France  and 
Russia;  (2)  such  states,  otherwise  separate  and  distinct,  as 
happen  to  be  temporarily  or  accidentally  united  in  a  personal 
union  under  a  single  sovereign;  (3)  aggregates  arising  out  of 
real  unions  like  that  uniting  Hungary  with  Austria;  (4)  in- 
corporate unions  such  as  that  existing  between  England  and 
Scotland,  and  between  Great  Britain  and  Ireland ;  (5)  federal 
unions  of  the  kind  embodied  in  the  constitutions  of  Switzer- 
land, Germany,  and  the  United  States.  The  illustration 
usually  given  of  a  personal  union  is  that  which  accidentally 
bound  the  United  Kingdom  of  Great  Britain  and  Ireland  to 
that  of  Hanover  from  the  accession  of  George  I.  down  to  the 
death  of  William  IV.,  during  the  five  successive  reigns  in  which 
the  king  of  England  was  the  Elector  of  Hanover.2  The  coin- 
cidence which  thus  placed  the  two  crowns  on  the  same  head 

1  "It  is  the  business  of  the  state  with  which  a  contract  is  made  to  take  reason- 
able care  to  inform  itself  as  to  the  competency  of  those  with  whom  it  negotiates. " 
Hall,  p.  348. 

2  Cf.  Phillimore,  i.  Ixxvi.;   Halleck,  i.  68;   Heffter,  §  20;  Twiss,  i.  46. 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW     603 

by  the  civil  law  of  succession  in  each  country,  did  not  place 
either  in  such  a  relation  to  foreign  powers  that  war  with  the 
one  necessarily  involved  war  with  the  other,  while  in  treaty 
engagements  with  such  powers  no  attempt  was  made  to  in- 
volve one  with  the  other.  When  states  with  an  independent  A  real 
existence  are  permanently  united  to  each  other  under  a  single 
sovereign  in  such  a  way  as  to  make  them,  for  the  purposes  of 
international  law,  a  single  corporate  body,  the  tie  becomes  a 
real  union  as  distinguished  from  a  personal  one.1  A  typical 
illustration  of  a  real  union  is  that  embodied  in  the  dual  mon- 
archy of  Austria-Hungary.  A  gesammtstaat,  or  joint  state,  A  gesammt- 
may  be  a  greater  whole  in  which  the  states  composing  it  have  jomt' state, 
lost  their  international  existence,  as  in  the  case  of  Austria- 
Hungary,  or  it  may  be  a  greater  whole  in  which  such  states 
enjoy  both  a  separate  and  a  common  international  existence, 
as  hi  the  case  of  Prussia  and  Denmark  as  once  organized.2 
The  old  union  of  Sweden  and  Norway  was  therefore  a  gesammt- 
staat or  real  union.3  The  term  "  incorporate  union"  is  usually  An  incor- 
employed  to  describe  the  mighty  aggregate  that  has  arisen 
out  of  the  process  through  which  the  little  Teutonic  kingdom 
called  "Wessex  has  grown  into  England,  England  into  Great 
Britain,  Great  Britain  into  the  United  Kingdom,  the  United 
Kingdom  into  the  British  Empire,"  4  —  a  process  that  has 

1  "Unio  civitatum,  sive  perpetua  sit,  sive  temporaria,  fit  jure  (1)  vel  societatis 
(systema  civitatum  foederatarum)  (2)  vel  imperii  (sub  eodem  imperante). 
Haec  est  vel  personalia  vel  reolis."  Klviber,  I.  §  27. 

8  At  that  epoch  the  king  of  Denmark  could  treat  in  behalf  of  the  entire 
Danish  monarchy  as  a  gesammtstaat,  or  joint  state ;  or  in  behalf  of  the  two  Ger- 
manic duchies  of  Holstein  and  Lauenburg  alone;  or  in  behalf  of  the  Danish 
provinces  alone.  Cf.  Wheaton's  History  of  the  Law  of  Nations,  pp.  447-448, 
457-460,  which  deals  with  the  effect  of  the  Final  Act  of  1820  in  defining  the 
war-making  and  treaty-making  powers,  both  of  the  confederation  itself  and 
of  its  several  members. 

»  It  was  so  classed  by  Kliiber  (§  27),  and  by  Heffter  (§  26).  Wheaton  and 
Phillimore,  however,  classed  the  union  between  Sweden  and  Norway  as  a  per- 
sonal one.  Twiss,  while  denying  that  position,  says :  "It  is  not  identical  with 
the  real  union  which  exists  between  the  independent  states  which  compose  a  ge- 
sammtstaat, as  Norway  has  not  any  international  existence  apart  from  Sweden." 
i.  51-52.  *  Freeman,  Norman  Conquest,  i.  16. 


604 


THE  SCIENCE  OF  JURISPRUDENCE 


Treaty- 
making 
power  in 
British 
Empire. 


Palmerston. 


Federal 
unions. 


A  staaten- 
bund. 


gradually  unfolded  itself  during  the  fourteen  centuries  that 
have  elapsed  since  the  Teutonic  conquest  and  settlement  of 
Britain  began.  The  sole  and  exclusive  power  to  make  treaties, 
leagues,  and  alliances  with  foreign  states,  binding  on  the 
British  Empire,  is  vested  in  the  crown,  acting  under  the  advice 
of  responsible  ministers,  without  the  advice  of  Parliament 
and  at  their  peril.  As  Lord  Palmerston  expressed  it  in  ten- 
dering a  seat  in  the  Cabinet  to  Mr.  Cobden:  "You  and  your 
friends  complain  of  a  secret  diplomacy  and  that  wars  are 
entered  into  without  consulting  the  people.  Now  it  is  in  the 
Cabinet  alone  that  questions  of  foreign  policy  are  settled. 
We  never  consult  Parliament  until  after  they  are  settled. 
If,  therefore,  you  wish  to  have  a  voice  in  these  questions,  you 
can  only  do  so  in  the  Cabinet."  *  In  classifying  federal  unions 
the  starting-point  is  the  less  strictly  organized  league  resting 
upon  the  requisition  system,  —  of  the  type  prevailing  before 
the  making  of  the  present  Constitution  of  the  United  States,  — 
and  usually  styled  a  confederated  state,  or  in  German  tech- 
nical language  a  staatenbund.2  The  leading  characteristic  of 
such  a  confederation,  so  far  as  its  international  relations  are 
concerned,  is  that  the  state  does  not  entirely  surrender  to  the 
central  power  its  right  of  dealing  directly  with  other  states. 
Originally  both  the  Swiss  and  German  confederations  belonged 
to  that  class.  Under  the  constitution  of  the  new  German 
confederation,  embraced  in  the  Final  Act  of  the  Congress  of 
Vienna  (1815),  the  right  was  still  retained  by  each  state  to 
declare  and  carry  on  war  and  to  negotiate  peace  with  any 
power  foreign  to  the  confederation,  and  to  make  its  own 

1  Morley,  Life  of  Cobden,  ii.  231 ;  Spencer  Walpole,  Foreign  Relations,  p.  117. 
"It  is  for  Parliament  to  inquire,  to  criticise,  to  support,  to  condemn  in  ques- 
tions of  foreign  policy,  but  it  is  not  for  Parliament  to  initiate  a  foreign  policy." 
Beaconsfield,  Collected  Speeches,  ii.  125. 

3  As  to  the  distinction  between  the  two  classes,  see  J.  S.  Mill,  Representative 
Government,  p.  301 ;  Professor  Bernard,  Lectures  on  American  War,  Oxford,  1861, 
pp.  68-72 ;  Tocqueville,  Democracy  in  America,  i.  250,  265  sq. ;  Freeman, 
History  of  Federal  Government,  i.  11-12  and  notes;  Heffter,  §  20. 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW     605 

alliances,  provided  that  no  injury  was  thereby  inflicted  upon 
the  confederation  itself,  or  upon  any  of  its  members.1  Even 
under  the  existing  constitution  of  the  German  Empire,  while  Existing 
complete  jurisdiction  over  foreign  affairs  is  vested  in  the  im- 
perial  government,  there  is  a  reservation  that  certain  of  the 
states  shall  retain  the  right  to  deal  independently  with  foreign 
courts  in  reference  to  such  affairs  as  do  not  involve  imperial 
interests.2  By  the  adoption  of  the  existing  constitution  .  of 
the  United  States  an  entirely  new  type  of  federal  government 
was  created,  which  writers  upon  public  law  have  designated 
a  composite  state,  or  supreme  federal  government,  in  German 
technical  language  a  bundesstaat.  The  new  federal  creation 


that  arose  out  of  the  deliberations  of  the  convention  of  1787 
was  both  unique  and  original,  and  its  success  has  virtually 
abolished  the  preexisting  type  of  federal  league,  resting  on 
the  requisition  system.  As  the  staatenbund  has  superseded 
everywhere  the  bundesstaat,  international  law  has  now  only 
to  deal  with  supreme  federal  governments  which  for  all  inter- 
national purposes  apppear  as  single  states,  representing  the 
nationality  of  the  entire  federal  body.  For  that  reason  the 
constitution  of  every  federal  state  should  supply  its  executive  Defect  in 
with  resources  adequate  to  every  international  demand  that  tioiTofu. 
can  rightfully  be  made  upon  it.  Unfortunately  the  Constitu- 
tion of  the  United  States  is  not  perfect  in  that  respect.3 

5.   Abnormal  international  persons  are  such  states  as  are  An  abnor- 
only  part  sovereign,  or  such  as  have  no  place  in  the  family  of  ^ionair~ 
nations.    Any  state,  no  matter  what  the  form  of  its  consti-  P61"8011- 
tution,   may,  through  a  voluntary  convention  or  through 
external  pressure  it  cannot  resist,  be  placed  in  such  a  relation 

1  Each  state  also  retained  its  rights  of  legation  as  to  foreign  powers  and  to 
its  co-states.     Kliiber,  Oeffentliches  Recht  dea  Deutschen  Bundes,  §§  137-143. 

2  Although  such  a  reservation  causes  the  new  fabric  to  be  still  designated, 
in  a  purely  technical  sense,  a  staatenbund,  it  is,  as  all  the  world  knows,  a  supreme 
federal  government,  a  bundesstaat,  in  the  highest  sense  of  the  term. 

*  See  Taylor,  International  Public  Law,  pp.  171  sq. 


606 


THE  SCIENCE  OF  JURISPRUDENCE 


Part 
states. 


states  per- 


of  dependence  to  another  state  as  to  be  deprived  of  a  part 
of  its  external  sovereignty  or  have  the  same  for  a  time  entirely 
suspended.  In  either  event  such  a  state  would  descend  to  the 
class  usually  designated  as  part  sovereign,1  and  as  such  con- 
tinue to  be  a  subject  of  international  law.  An  illustration 
of  the  nature  of  part  sovereign  states  may  be  found  in  the  per- 
sons of  such  as  have  united  themselves  in  that  kind  of  a 
federal  union  already  described  as  a  staateribund,  in  which  the 
several  states  reserved  to  themselves  the  right  to  deal  with 
foreign  powers  in  matters  not  expressly  transferred  to  the 
exclusive  control  of  the  federal  authority.  As  a  necessary 
result,  complete  external  sovereignty  was  vested  neither  in 
the  central  government  nor  in  the  states  out  of  whose  union 
it  arose.  It  is,  therefore,  correct  to  say  that  the  central  as 
well  as  the  local  governments  in  such  unions  were  only  part 
sovereign.  Permanently  neutralized  states  such  as  Switzer- 
land  and  Belgium  cannot  be  said  to  possess  complete  external 
sovereignty  because  under  the  conventions  securing  their 
integrity  they  are  deprived  of  a  part  of  their  independence  by 
being  denied  the  right  to  engage  in  any  strictly  defensive 
warfare,  and  to  enter  into  any  compacts  that  might  involve 
them  in  hostilities  for  any  other  than  purely  defensive  pur- 
poses.2 Not  until  a  state  is  placed  by  its  own  act,  or  by 
external  pressure  it  cannot  resist,  in  such  a  permanent  and 
irrevocable  position  of  dependence  upon  another  as  to  vest  in 
the  controlling  state  the  entire  direction  of  its  foreign  affairs, 

1  The  term  "  part  sovereign  "  has  been  adopted  as  more  accurate  than  the 
term  "semi-sovereign,"  which  implies  an  equal  division  of  the  powers  of  sover- 
eignty between  the  local  and  foreign  rulers.  The  latter  term  seems  to  have 
been  introduced  by  J.  J.  Moser  in  his  Beytrage  zum  Vdlkerrecht  in  Friedenzerten, 
i.  508.  Cf.  Twiss,  i.  25;  Heffter,  §  19;  Martens,  Prtcis,  §  20;  Kluber,  §  1; 
Lawrence,  p.  68. 

*  The  Transvaal  Republic,  originally  independent,  impaired  its  sovereignty 
when  it  agreed,  in  article  4  of  the  convention  of  February  27,  1884,  to  make 
"no  treaty  with  any  other  state,  other  than  the  Orange  Free  State,  nor  with 
any  native  tribe  east  or  west  of  the  Republic,  without  the  approval  of  Great 
Britain." 


' 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW      607 

does  it  cease  to  be  a  person  in  international  law.    Such  com-  when  a 
munities  are  usually  termed  protected  states,  because  by  ^bea6*8 
reason  of  their  inability  to  defend  themselves  they  have  been  p61*011  m 

interna- 

placed  under  a  protectorate,  constituted  either  by  a  volun-  tionaiiaw. 
tary  stipulation  between  themselves  and  the  protecting  power, 
or  by  an  arrangement  made  without  their  consent  between 
other  powers  interested  in  the  disposition  of  their  territory. 
In  cases  in  which  the  international  existence  of  protected 
states  ceases  entirely  they  may  still  enjoy,  so  far  as  their  in- 
ternal affairs  are  concerned,  almost  entire  independence  of 
the  controlling  state. 

6.    The  normal  condition  of  the  family  of  nations  —  com-  intema- 
posed  of  a  group  of  territorial  sovereigns  who  have  inherited  normal 'and 
a  common  civilization  and  are  upon  the  same  general  plane  abnonnal; 
of  moral  and  political  opinion  —  is  one  of  peace.     Therefore 
the  body  of  rules  regulating  their  relations  in  time  of  peace 
may  be  called  normal  international  law  in  contradistinction 
to  the  body  of  rules  regulating  their  relations  when  they  are  in 
the  abnormal  condition  known  as  a  state  of  war.    Normal 
international  law  may  be  called  the  substantive  law  of  na-  substantive 
tions  by  which  rights  are  defined,  while  abnormal,  the  pro-  ^ive" 
cedure  through  which  the  substantive  law  may  be  lawfully 
enforced,  may  be  called  the  adjective  law  of  nations,  corre- 
sponding in  a  general  way  with  what  is  called  "the  law  of 
nations  in  time  of  war."     Under  normal  international  law 
or  the  law  of  peace  are  grouped  all  the  rules  relating  to  formal  law  of 
equality,  to  non-intervention,  and  to  territorial  jurisdiction.  pea 
The  rights  and  duties  of  states  in  time  of  peace  involve  a 
consideration  (1)  of  the  nature  and  attributes  of  states,  sov- 
ereign and  part  sovereign,  (2)  sovereignty  and  jurisdiction  in 
relation  to  persons,  (3)  sovereignty  and  jurisdiction  in  relation 
to  property,  (4)  diplomatic  intercourse,  (5)  the  treaty-making 
power,   (6)   and  the  right  of  self-preservation.    The  rights 
and  duties  of  states  in  time  of  war  involve  a  consideration  (1)  of  law  of  war; 


608 


THE  SCIENCE  OF  JURISPRUDENCE 


law  of 
neutrality. 


Holy  Ro- 
man Em- 
pire as  an 
interna- 
tional 
power. 


Its  sway 
supposed  to 
be  univer- 
sal. 


the  forcible  means  of  redress  short  of  actual  war,  (2)  the  com- 
mencement of  war  and  its  immediate  consequences,  (3)  the 
rights  and  duties  of  belligerents  during  hostilities  on  land  and 
sea,  (4)  the  limitation,  suspension,  and  conclusion  of  hostilities, 
(5)  the  laws  of  war  as  to  enemy  persons,  (6)  the  laws  of  war  as 
to  enemy  property  on  land,  (7)  the  laws  of  war  as  to  enemy 
property  at  sea,  (8)  military  occupation  and  administration, 
(9)  and  the  termination  of  war.  Abnormal  international  law 
embraces  not  only  belligerency  but  neutrality,  whose  con- 
sideration involves  (1)  the  duties  of  neutral  towards  belligerent 
states,  (2)  the  duties  of  belligerent  towards  neutral  states, 
(3)  legitimate  neutral  commerce,  (4)  contraband  trade, 
(5)  neutral  services,  lawful  and  unlawful,  (6)  blockade,  and 
(7)  the  right  of  visit  and  capture. 

7.  The  separate  nationalities  composing  the  state  system 
of  modern  Europe,  which  arose  out  of  the  wreck  of  the  Em- 
pire of  Charles  the  Great,  passed  through  a  long  childhood 
under  the  protecting  wings  of  an  institution  that  illustrated 
for  centuries  the  enduring  power  of  a  political  theory.  The 
chiefs  of  that  comprehensive  institution  were  the  Roman 
emperor  and  the  Roman  pontiff,  —  the  one  standing  at  its 
head  in  its  temporal  character  as  an  empire,  the  other 
standing  at  its  head  in  its  spiritual  character  as  a  church. 
The  Roman  Empire  and  the  Roman  Catholic  Church  were, 
according  to  medieval  theory,  two  aspects  of  a  single  Chris- 
tian monarchy  whose  sway  was  supposed  to  be  universal. 
The  highest  aspiration  of  the  pope  in  his  struggles  with  the 
emperor  was  so  to  establish  his  supremacy  over  all  princes, 
including  the  emperor  himself,1  as  to  enable  him  to  offer  to 

1  Whether  the  supreme  temporal  ruler,  who  was  admitted  to  his  high 
office  through  consecration  at  the  hands  of  the  spiritual  chief  of  Christendom, 
was  in  the  last  resort  subordinate  to  the  latter  as  the  lesser  to  the  greater  light, 
or  whether  their  dignities  were  coordinate,  and  coequal,  were  the  questions 
over  which  was  fought  the  great  battle  between  pope  and  emperor  in  the  days 
of  the  world's  wonder,  Frederick  II.  The  contention  Frederick  left  unsettled 
was  continued  in  the  next  age  by  two  famous  disputants.  St.  Thomas  of  Aquinas, 


LAW  BY  ANALOGY,   OR  INTERNATIONAL  LAW      609 

Europe  the  arbitrating  power  it  demanded.  That  judicial 
supremacy,  which  the  pope  claimed  not  only  over  the  em- 
peror but  over  all  other  Christian  princes,  taking  its  color 
from  the  dominant  political  ideas  of  the  age,  naturally  assumed 
a  feudal  shape.  The  theory  was  that  all  Christian  princes 
stood  to  the  Roman  pontiff  as  great  vassals  to  a  supreme  lord. 
The  pope  claimed  the  right  to  enforce  the  duties  due  to  him 
from  his  feudal  subordinates  through  an  ascending  scale  of 
penalties  that  culminated  at  last  in  the  absolution  of  the 
subject  from  the  bonds  of  allegiance,  and  in  the  deposition 
of  the  sovereign  himself.  Here  existed  in  theory,  and  to  a 
certain  extent  in  fact,  an  international  system  governed  by 
law  proper  or  positive  law,  emanating  from  a  common  superior 
and  enforcible  by  him  through  physical  means.1  No  matter 
to  what  extent  the  Holy  Roman  Empire  may  have  failed  as 
an  international  power,  whether  arbitrating  on  its  spiritual 
side  through  the  pope  and  the  canon  law,  or  on  its  temporal 
side  through  the  emperor  and  the  Imperial  law,2  the  fact  re- 
mains that  for  centuries  it  was  the  one  bond  of  cohesion  hold-  The  one 
ing  Europe  together  under  the  spell  of  a  theory  that  assumed  cohesion  for 
to  provide  a  complete  system  of  international  justice  and  a  centunes- 
supreme  tribunal  adequate  for  the  settlement  of  all  contro- 
versies which  could  possibly  arise  between  Christian  nations. 
Ever  since  that  imposing  fabric  was  wrecked  by  the  earth- 
quake known  as  the  Reformation,  the  family  of  nations  has 
been  dreaming  of  a  substitute  for  the  Grotian  system  of  law 
by  analogy,  —  a  system  without  any  common  superior  who 

in  his  treatise,  "Of  the  Government  of  Princes, "  defended  the  supremacy  of 
the  papacy  on  the  one  hand,  while  Dante,  in  his  De  Monarchia,  maintained 
the  independence  of  the  empire  on  the  other. 

1  Such  were  the  claims  of  the  papal  power  and  such  its  resources  when  King 
John  of  England  found  it  expedient  to  kneel  at  the  feet  of  Innocent  III. 

3  The  advocates  of  the  "Imperator  Pacificus"  depicted  him  not  only  as  a 
peacemaker  but  as  the  very  embodiment  of  legality.  "Imperator  est  Animata 
lex  in  terris."  Von  Raumer,  v.  81,  quoting  from  a  letter  of  the  bishops  of 
Salzburg  and  Regensburg  to  Pope  Gregory  IX.  Cf.  Bryce,  Holy  Roman  Em- 
pire, p.  239,  note  2. 

IB 


610  THE  SCIENCE  OF  JURISPRUDENCE 

The  dream    can  either  enact  law  or  enforce  it.    The  aim  of  the  project 
tuteforthe   °f  the  Abbe*  St.  Pierre,  brought  forward  in  1713  and  matured 


was  to  perpetuate  the  settlement  embodied  in  the 
treaties  of  Utrecht  through  an  alliance  or  league  of  European 
states,  which  should  renounce  the  right  of  war,  and  submit  all 
differences  to  the  arbitration  of  a  diet  representing  twenty 
votes,  three  fourths  of  which  was  to  be  final.1  In  1786-1789 
followed  the  scheme  of  Jeremy  Bentham  2  ;  and  in  1795 
Immanuel  Kant  published  his  essay  "touching  perpetual 
peace,"  3  in  which  he  maintained  that  international  law 
should  rest  upon  a  confederation  of  free  states  which  should 
guarantee  untrammeled  intercommunication  through  the 
establishment  of  a  world  citizenship,  under  the  direction  of  a 
congress  to  be  called  and  dissolved  at  the  pleasure  of  the 

The  hope  of  members  of  the  confederation.  If  that  ideal  is  ever  attained, 
international  law  will  cease  to  be  law  by  analogy  by  being 
transmuted  into  the  positive  law  of  a  federal  government 

tive  law.  embracing  the  states  of  the  world.  The  great  movement  now 
in  hopeful  progress,  which  has  as  its  center  the  organization 
existing  at  The  Hague,  has  that  august  end  in  view.  When- 
ever by  a  system  of  treaties  the  leading  states  of  the  world 
agree  to  submit  certain  classes  of  rights  to  compulsory  arbi- 
tration and  adjudication  by  a  court  whose  judgments  can  be 
enforced  by  physical  means,  then,  to  that  extent,  the  inter- 
national rules  regulating  such  classes  of  rights  will  be  trans- 
muted into  positive  law  as  to  the  states  interested. 

1  Cf.  Wheaton,  History  of  Law  of  Nations,  pt.  ii. 

2  Works  (Bowring  ed.),  pt.  viii.,  pp.  537-554. 

3  For  his  Zum  Ewigen  Frieden,  see  Works,  v.  411-466. 


CHAPTER  IX 

INTERNATIONAL  RULES  TO  PREVENT  CONFLICT  OF  LAWS 

1.  The  system  of  international  law  founded  by  Grotius  was  Every  state 
intended  to  regulate  the  intercourse  of  a  group  of  territorial 
sovereigns  that  recognized,  as  the  basis  of  their  union,  the 
maxim  that  territory  and  jurisdiction  are  coextensive.  The 
inevitable  sequitur  was  an  exclusive  sovereign  and  legislative 
authority  in  each  separate  territory;  and  to  this  day  it  is  a 
principle  recognized  by  all  authorities  that  each  individual 
state  may,  by  virtue  of  its  sovereign  power,  shut  out  foreign 
laws  from  its  territory  altogether.  As  Foelix  1  has  expressed 


it:  "Every  state  possesses  the  power  of  regulating  the  condi- 

tions on  which  the  real  and  personal  property,  within  its 

territory,  may  be  held  or  transmitted;    and  of  determining 

the  state  and  capacity  of  all  persons  therein,  as  well  as  the 

validity  of  the  contracts  and  all  other  acts  which  arise  there, 

and  the  rights  and  obligations  which  result  from  them  ;  and, 

finally,  of  prescribing  the  conditions  on  which  suits  at  law 

may  be  commenced  and  carried  on  within  its  territory." 

From   that   general  right  of  control   results   the   exclusive 

power  of  every  state  to  fix  the  personal  and  civil  status  of 

its  citizens  and  the  status  and  condition  of  all  real  and  per- 

sonal property  situated  within  its  limits,  whether  belonging 

to  citizens  or  aliens.    Upon  that  basis  rest  two  of  the  three 

maxims  of  Huber:  2  first,  that  the  laws  of  every  empire  have  TWO  of  the 

force  only  within  the  limits  of  its  own  government,  and  bind  maSma  of 

all  who  are  subjects  thereof,  but  not  beyond  them;  second,  Hub€r- 

1  Droit  Int.  Privt,  §  9. 

*  De  Conflictu  Legum,  lib.  i.,  tit.  3,  §  2,  p.  538. 
611 


612 


THE  SCIENCE  OF  JURISPRUDENCE 


A  strict  ap- 
plication of 
the  lex  fori 
would  pre- 
vent all 
conflicts  of 
law. 


Comity,  a 
body  of 
rules  to 
prevent 
incon- 
veniences 
and  in- 
justices. 


Third 
axiom  of 
Huber. 


that  all  persons  who  are  found  within  the  limits  of  a  govern- 
ment, whether  their  residence  is  permanent  or  temporary, 
are  to  be  deemed  subjects  thereof.  The  independence  of 
each  state  within  its  own  borders  guarantees  to  it  the  right 
to  regulate  every  set  of  circumstances  which  call  for  decision 
exclusively  by  its  own  law,  without  contravening  any  prin- 
ciple of  international  law.  If,  in  the  exercise  of  that  un- 
doubted right,  each  member  of  the  family  of  nations  had  in 
virtue  of  its  sovereignty  insisted  that  its  courts  should  apply 
the  lex  fori,  the  natural  law  for  the  courts  of  each  state  to 
apply,  to  all  jural  relations  coming  before  them,  there  could 
have  been  no  such  thing  as  a  body  of  international  rules  or 
tacit  understandings  for  the  prevention  of  conflict  of  laws. 
No  such  conflicts  could  have  occurred. 

2.  The  body  of  rules  for  the  prevention  of  conflict  of  laws 
are  the  product  of  mutual  concessions  from  one  state  to 
another,  made,  upon  the  basis  of  comity,  in  order  to  prevent 
inconveniences  and  injustices  arising  out  of  intercommuni- 
cation. If  no  such  concessions  had  been  made,  the  inter- 
course of  nations  would  have  been  continually  vexed  with 
inconveniences  and  injustices  arising  out  of  conditions  in 
which  a  right  duly  acquired  under  the  laws  of  one  country 
could  be  annulled  by  contrary  laws  prevailing  in  another. 
In  order  to  modify  the  evils  that  would  have  resulted  from 
a  strict  enforcement  of  the  lex  loci,  the  family  of  nations 
has  fallen  back  upon  the  third  axiom  of  Huber,1  that  the 
rulers  of  every  empire  from  comity  admit  that  the  laws  of 
every  people,  in  force  within  its  own  limits,  ought  to  have 
the  same  force  everywhere,  so  far  as  they  do  not  prejudice 
the  powers  or  rights  of  other  governments,  or  of  their 
citizens.  That  expedient  has  prospered  through  the  willing- 
ness upon  the  part  of  states  to  modify  their  exclusive  rights 
of  sovereignty  in  order  to  prevent  "gross  inconveniences  and 

1  De  conflictu  legum,  lib.  i.,  tit.  3,  §  2,  p.  538. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  613 

injustice  to  litigants,  whether  natives  or  foreigners."  1    Thus 
there  has  been  growing  up  among  civilized  states,  since  the 
middle  of  the  seventeenth  century,  a  body  of  rules  touching 
the  purely  private  relations  of  individuals,  whose  aim  is  to  Aim  of 
secure  the  recognition  and  enforcement  in  the  courts  of  every  g^temf 
state    of   any   right    which    has  been  duly  acquired  under 
the  laws  of  another.2    It  has  not  been  found  convenient, 
however,  to  relax  the  exclusive  sovereign  right  of  every  state 
to  determine  the  status  and  disposition  of  immovable  prop- 
erty.   All  rights  in  immovables  are,  as  a  general  rule,  regu- 
lated by  the  lex  situs.    This  growing  system  of  mutual  con- 
cessions has  therefore  been  limited  to  the  regulation  of  rights 
in  movables  upon  the  basic  principle  that  the  personal  status 
and  jural  capacity  of  a  person  is  to  be  determined  by  the  law  influence  of 
of  his  domicile.    In  that  way  this  branch  of  law  has  been  domicile0 
mainly  occupied  with  the  application  of  the  lex  domicilii  to 
questions  of  marriage,  divorce,  succession,  wills,  citizenship, 
minority,  legitimacy,  lunacy,  guardianship,  and  administra- 
tions, foreign  judgments  and  contracts,  bankruptcy,  and  the 
like.     By  Savigny  3  and  many  other  foreign  jurists  it  has  been  Savigny 
held  that  a  person's  status,  subject  to  certain  exceptions, 
depends  entirely  upon  the  law  of  his  domicile,  or,  as  Lord 
Westbury  expressed  it  in  Udny  v.  Udny,4  a  person's  civil  status  and  Lord 
ought  to  be  "governed  universally  by  one  single  principle, 
namely,  that  of  domicile,  which  is  the  criterion  established 

1  Dicey,  Conflict  of  Laws,  p.  10. 

2  Savigny,  writing  in  1849,  said  in  his  preface:   "It  may  be  said  that  this 
branch  of  science  has  already  become  a  common  property  of  civilized  nations, 
not   through    possession    already   gained   of    fixed,    universally   acknowledged 
principles,  but  through  a  community  in  scientific  inquiries  which  reaches  after 
such  possession.     A  vivid  picture  of  this  unripe  but  hopeful  condition  is  fur- 
nished by  the  excellent  work  of  Story,  which  is  also  in  a  high  degree  useful  to 
every  investigator  as  a  rich  collection  of  material."    A  Treatise  on  the  Conflict 
of  Laws,  forming  the  eighth  volume  of  his  System  des  heutigen  Romischen  Rechts. 
See  W.  Guthrie's  trans.,  2d  ed.,  Edinburgh,  1880. 

1  Conflict  of  Laws,  §  362,  Guthrie's  trans.,  2d  ed.,  p.  148. 

4  (C.A.)  1  L.R.    1   Sc.   App.  441,  457.     See  also   Sottomayor  t>.  De  Barros, 
3  P.D.  (C.A.)  1. 


THE  SCIENCE  OF  JURISPRUDENCE 


General 
rules  as  to 
law  of 
domicile. 


Exceptions 
to  the  rule 
of  the  lex 
fori. 


Judicial 
evolution 
of  the  rules 
in  question. 


Why  no 
conflict 
between 
jus  gentium 
and  Roman 
civil  law. 


by  law  for  the  purpose  of  determining  civil  status."  Hence 
the  general  and  convenient  rules,  subject  to  certain  excep- 
tions, that  the  assignment  of  movables,  wherever  situated, 
in  accordance  with  the  law  of  the  owner's  domicile  is  valid; 
that  a  person's  capacity  to  enter  into  a  contract  is  governed 
by  the  law  of  his  domicile  at  the  time  of  its  making ;  that  a 
marriage  is  valid  when  each  of  the  parties  has,  according 
to  the  law  of  his  or  her  respective  domicile,  the  capacity 
to  enter  into  that  relation;  that  a  will  of  movables  is  to 
be  interpreted  with  reference  to  the  law  of  the  testator's 
domicile  at  the  time  when  it  was  made,  and  that  the  distribu- 
table residue  of  the  movables  of  a  deceased  person  is  gov- 
erned by  the  law  of  his  domicile  at  the  time  of  his  death.  The 
fact  should  never  be  for  a  moment  lost  sight  of  that  all  such 
principles  are  simply  exceptions  to  the  general  rule  of  the 
lex  fan,  which  it  has  become  inconvenient  to  apply,  as  civi- 
lization and  commerce  have  advanced,  to  all  transactions, 
whether  completed  wholly  within  the  territory  or  partly 
outside  of  it,  and  to  acts  of  all  persons,  whether  permanently 
settled  in  the  country  or  merely  passing  through  it.  It  is 
of  course  purely  a  voluntary  act  on  the  part  of  any  state 
when,  in  obedience  to  comity,  it  gives  effect  to  a  foreign  law. 
3.  Through  a  slow  and  troubled  process  of  judicial  evo- 
lution have  come  into  being  the  rules  or  understandings  now 
enforced  for  the  prevention  of  conflict  of  laws.  Scanty 
success  has  attended  the  many  efforts  made  to  find  in  the 
authorities  on  Roman  law  general  principles  for  the  appli- 
cation of  the  laws  of  different  countries,  for  the  reason  that 
for  the  purposes  of  trade  no  principles  of  law  were  necessary 
but  those  the  Roman  jurists  indicated  by  the  name  jus  gen- 
tium. That  law  could  never  come  into  conflict  with  Roman 
civil  law  because  it  was  a  law,  "Quod  apud  omnes  gentes 
peraeque  custoditur."  Or  probably  it  may  be  said  that  the  jus 
gentium  was  created  primarily  to  prevent  a  conflict  of  laws,  as 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  615 

it  was  the  first  law  that  a  Roman  praetor  could  ever  apply  to 
men  of  all  nations.1    Nothing  substantial  can  be  drawn  from 
the  oft-quoted   passage,  "Cunctos    populos   quos  clementiae 
nostrae  imperium  regit,"  2  which  signifies  nothing  more  than 
the  truism  that  the  emperor  could  only  proclaim  laws  to  the 
peoples  whom  he  ruled.    While  the  subjects  of  nations  with  Special 
which  special  treaties  had  been  concluded  for  mutual  legal  recog-  noTput  for- 
nition  were  held  upon  the  whole,  as  were  almost  all  foreigners  equaTterms 
with  whom  Rome  had  a  peaceable  commercial  intercourse*  ™ih  R°- 

man  citi- 

to  be  of  full  legal  capacity  for  all  the  purposes  of  trade,  such  zens. 

concessions  did  not  put  the  foreigner  on  equal  terms  with 

the  Roman  citizen  as  regarded  private  rights  and  privileges. 

Although  the  evidence  is  not  direct,  it  may  be  safely  assumed 

that  when  questions  arose  as  to  the  legal  status  and  capacity  HOW  status 

of  foreigners  to  act  they  were  determined  by  the  law  of  the 

country  to  which  the  foreigner  belonged.     If  it  were  lawful 

for  a  foreigner  to  bring  slaves  to  Rome  with  him,  or  to  take  determined. 

them  away  from  Rome,  slavery  would  be  treated  by  the 

courts  precisely  like  property  in  other  movable  goods.     In 

the  days  of  the  Empire,  when  Roman  citizens  lived  in  all 

quarters  of  its  dominions  and  observed  their  own  law  without 

regarding  the  place  where  they  dwelt,  it  is  very  clear  that  the  The  law  of 

private  law  of  property  and  rights  was  treated  by  Romans  and  followed  a 


strangers  as  a  special  part  of  the  law  of  status  which  followed 

a  Roman  wherever  he  went.4    The  legal  position  of  all  be-  he  went- 

came  the  same  of  course  when,  at  a  later  time,  Caracalla 

1  See  above,  pp.  33  sq.  *  First  title  of  the  Codex,  de  Summa  Trinitate. 

1  See  L.  5,  §  2,  D.  de  captivis,  49,  15.  "  In  pace  quoque  postliminium  datum 
est  ;  nam  si  cum  gente  aliqua  neque  amicitiam,  neque  hospitium  neque  foedus 
amicitiae  causa  factum  habemus,  hi  host  is  quidem  non  aunt  ;  quod  autem 
ex  nostro  ad  eos  pervenit,  illorum  fit  ...  idemque  est,  si  ab  illis  ad  nos  aliquid 
perveniat.  .  .  ."  Cf.  Foelix,  i.,  p.  8. 

4  Wachter  (i.  §  242),  Ueber  die  Collision  der  Privatrechtsgesette  im  Archiv. 
fur  die  civilistische  Praxis,  xxiv.,  xxv.  According  to  Savigny  the  right  of 
Roman  citizenship  possessed  by  every  citizen  of  a  municipiurn,  in  addition  to 
his  own  native  rights  of  citizenship,  had  nothing  to  do  with  determining  his 
personal  rights,  but  that  in  determining  these  no  regard  was  paid  except  to 
the  law  of  his  own  home. 


616 


THE  SCIENCE  OF  JURISPRUDENCE 


Personal 
stage  in  the 
develop- 
ment of 
law 


as  illus- 
trated by 
govern- 
ments es- 
tablished 
by  bar- 
barians. 


Concession 
of  Franks 
to  con- 
quered 
races. 


Roman  law 
as  the  per- 
sonal law  of 
Roman!. 


gave  rights  of  Roman  citizenship  to  all  the  free  inhabitants 
of  the  Empire.1 

4.  The  personal  stage  in  the  development  of  law  —  when 
it  was  not  administered  as  a  system  within  a  given  territory, 
but  applied  to  members  of  tribes  or  races  or  religious  cults  in 
pursuance  of  the  personal  law  of  the  defendant  —  is  vividly 
illustrated  by  the  governments  established  by  the  barba- 
rians upon  the  wreck  of  the  Roman  Empire.  As  in  the  king- 
doms founded  by  the  Goths  and  Burgundians  the  intruding 
Teutons  were  only  a  small  part  of  a  population,  the  bulk  of 
which  was  Gallo-Roman,  it  was  natural  that  the  Romani 
should  continue  to  live  their  own  law.  As  the  Salian  Franks 
spread  over  Gaul,  while  retaining  for  themselves  their  own 
Lex  Salica,  they  conceded  to  the  conquered  races  the  right 
they  claimed  for  themselves.  After  the  founding  of  the  novel 
Roman  Empire  of  Charles  the  Great,  Roman  law  ceased  to  be 
the  territorial  law  of  any  part  of  the  lands  that  had  become 
subject  to  the  so-called  Roman  emperor.  Even  in  Rome  it 
sank  to  the  level  of  a  personal  or  racial  law,  while  in  North- 
ern Italy  there  were  many  Swabians  who  lived  Alamannic, 
and  Franks  who  lived  Salic  or  Ripuarian  law,  besides  the  Lom- 
bards.2 Thus  Roman  law  became  in  Rome  itself  only  the 
personal  law  of  the  Romani.3  The  churches,  except  some  of 
the  royal  foundation,  also  "lived  Roman  law."  *  It  was  long 
before  the  old  question  Qua  lege  vivisf  lost  its  importance. 
This  system  of  personal  laws  rested  on  the  theory  that  each 

1  Gellius,  N.  A.  iv.,  c.  4,  records  the  fact  that  when  the  right  of  Roman  citi- 
zenship was  given  to  the  Latin  towns,  they  lost  their  own  marriage  laws.  As 
to  the  conflict  of  that  fact  with  Savigny's  opinion,  cited  above  (viii.  §  357, 
Guthrie,  p.  120),  see  Bar,  International  Law,  p.  12,  note  6.  See  also  pp.  9-77. 

3  Brunner,  Deutsche  Rechtsgeschichte,  i.  260. 

3  In  1038  Conrad  II.  ordained  that  Roman  law  should  be  once  more  the 
territorial  law  of  the  city  of  Rome.  M.  G.  Leges,  ii.  40;  Conrat,  Geschichte 
de  Qudlen  des  Romischen  Rechts,  i.  62. 

*  In  Italy,  though  not  in  Frankland,  the  rule  that  the  individual  cleric  lives 
Roman  law  seems  to  have  been  gradually  adopted.  Brunner,  op.  cit.,  i.  269 ; 
Loning,  Geschichte  des  deutschen  Kirchenrechts,  ii.  284. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  617 

different  race  within  the  bounds  of  the  Empire  was  a  caste 

or  status  by  itself.    As  a  rule  every  man  lived  by  the  law  of  A  man  lived 

the  nation  to  which  he  belonged  by  descent,  and  the  law  of          e 


his  father's  nation  of  course  ruled.  The  wife  lived  by  the  natlon- 
law  of  her  husband's  nation;  marriage  was  celebrated  under 
the  law  of  the  husband's  nation;  during  the  marriage  the 
wife  shared  the  husband's  status;  not  until  she  became  a 
widow  did  she  recover  the  law  under  which  she  was  born. 
From  the  international  or  intertribal  rules  of  the  Frankish 
realm  recovered  in  recent  years  we  are  now  able  to  understand 
how  an  adjustment  was  made  of  "  a  conflict  of  laws,"  inevi-  HOW  ad- 
table  under  such  a  system  of  personal  laws.1  By  such  rules 
the  amount  of  the  wergild  was  fixed  by  the  law  of  the  slain, 
and  not  by  that  of  the  slayer;  the  law  of  the  grantor  pre- 
scribed the  ceremonies  with  which  land  must  be  conveyed; 
legitimate  children  took  their  father's,  bastards  the  mother's, 
law. 

Carolingian  capitularies  or  statutes  which  enact  terri-  Transition 
torial  laws  mark  an  important  stage  in  the  general  process 
of  transition  from  personal  or  tribal  to  territorial  organiza- 
tion.  Out  of  that  process,  which  transformed  Rex  Franco-  tion- 
rum  into  Rex  Franciae,  has  arisen  the  state  system  of  modern 
Europe  in  which  the  idea  of  territorial  sovereignty  and  ter- 
ritorial laws  is  the  basis  of  all  international  relations.  Under 
the  new  conditions  thus  brought  about,  —  in  which  law, 
instead  of  being  applied  on  a  personal  basis  to  members  of 
tribes  or  races,  was  administered  as  a  system  within  a  given 
territory,  —  it  became  necessary  to  construct  a  new  body 
of  rules  or  understandings  for  the  prevention  of  conflict  of 
laws.  The  jurists  who  assumed  the  task  of  constructing  the 
new  system  were  forced  to  recognize  the  fact  that  "  From  the 
conception  of  territorial  sovereignty,  which  is  now  so  firmly 

1  Brunner,  op.  cit.,  i.  261  ff.  ;  Pollock  and  Maitland,  History  of  English  Law, 
i.  13  sq. 


618 


THE  SCIENCE  OF  JURISPRUDENCE 


conception 
of  terri- 
torial sov- 
ereignty. 


Result  of  the  established,  there  follows  the  right  of  the  legislator  to  lay 
down  for  the  courts  of  his  country  instructions  for  the  dis- 
posal of  each  and  every  legal  question  that  may  form  the 
subject  of  an  action  before  them.  The  judge  must  follow 
the  express  directions  of  the  legislature  of  his  country  in 
questions  that  have  to  do  with  international  intercourse,  just 
as  much  as  those  that  are  concerned  with  questions  of  native 
law  alone.  .  .  .  The  difficulty,  however,  which  all  recognize 
consists  simply  in  this,  —  that  it  is  quite  exceptional  to  find 
express  instructions  of  the  legislature;  and  for  want  of  these 
the  judge  must,  by  interpreting  the  statute  law,  seek  out 
the  will  of  the  legislator,  and  decide  in  accordance  with  it."  l 
In  other  words,  while  the  legislatures  of  the  several  terri- 
torial sovereigns  composing  the  family  of  nations  possess 
the  right  to  determine,  by  express  enactment,  all  the  condi- 
tions under  which  foreign  laws  may  be  administered  within 
their  respective  limits,  they  have  wisely  committed,  except- 
ing only  criminal  law,  the  delicate  and  difficult  task  to  the 
judges  who  have,  through  judicial  legislation,  built  up  the 
set  of  understandings  now  existing  under  the  name  of  comity. 
Wachter,  in  his  important  treatise  quoted  already,  which 
has  so  greatly  advanced  the  study  of  the  subject,  assumes 
that  the  judge  who  passes  upon  the  application  of  foreign 
law,  in  default  of  express  instructions  as  to  the  legal  rela- 
tions that  arise  with  other  countries,  must  be  governed  by 
the  spirit  and  meaning  of  the  statute  and  not  by  its  words. 
Thus  many  authors,  such  as  Masse',  for  instance,  without  the 
statement  of  a  general  principle,  assert  that  the  justice 
and  equity  of  each  particular  case  must  determine  whether 
foreign  laws  are  to  be  applied  or  not.2  Out  of  the  tendency 
of  the  judicial  rules  thus  announced  to  approach  a  common 

1  Bar,  Private  International  Law,  p.  61  (Gillespie's  trans.). 
*  Massl,  Le  Droit  Commercial  dans  sea  Rapports  avec  le  Droit  des  Gens  et  le 
Droit  Civil,  3«  eU,  Paris,  1874. 


Comity  the 
product  of 
judicial 
legislation. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  619 

standard,  a  process  which  has  been  greatly  advanced  by  the 
influence  of  a  growing  body  of  theory,  has  arisen  a  set  of 
understandings  that  certainly  possess  a  certain  binding  au- 
thority. As  Dicey1  has  expressed  it:  "The  application  of 
foreign  law  is  not  a  matter  of  caprice  or  option,  it  does  not 
arise  from  the  desire  of  the  sovereign  of  England,  or  of  any 
other  sovereign,  to  show  courtesy  to  other  states.  It  flows 
from  the  impossibility  of  otherwise  determining  whole  classes 
of  cases  without  gross  inconvenience  and  injustice  to  liti- 
gants, whether  natives  or  foreigners." 

5.   When  a  glance  is  taken  at  the  origin  and  growth  of  the  origin  and 
literature  of  the  subject,  we  find  its  beginnings  in  the  com- 


peting  claims  of  the  statiUa  of  different  Italian  cities,  the  dis-  tufe.  °*  the 

subject. 

cussions  of    the   commentators  proceeding  directly  on  the 
proposition  that  a  statute  is  binding  only  upon  the  subjects 
of  a  state.     Discussions  on  the  question  whether  a  statute  is 
binding  on  the  clergy  are  set  alongside  of  the  question  as  to 
the  conflict  of  the  laws  of  the  different  states.2    Before  the  Personal, 
close  of  the  Middle  Ages  the  theory,  known  at  a  later  time  mfx'ed11 
as  the  theory  of  personal,  real,  and  mixed  statutes,  had  begun  statutes- 
to  prevail.    The  example  set  by  Bartolus  3  in  his  Commen-  Bartoius. 
tarii  in  Codicem  in  the  fourteenth  century  was  followed  by 
a  series  of  writers  such  as  Halbritter,  who  wrote  De  Statutis,  Haibntter. 
in  1545.     From  the  former  we  learn  that  at  last  it  came  to 
be  recognized  that  strangers  might  subject  themselves  to  the 
laws  of  a  foreign  country,  either  by  concluding  contracts  or 
committing  delicts.    John  Voet,  in  his  Commentary  on  the  johnVoet. 
Pandects,4  written  in  1698,  held  that  in  strict  law  no  appeal 
could  be  made  in  a  foreign  court  to  the  lex  domicilii  as  deter- 

1  Conflict  of  Laws,  p.  10. 

*  Cf.  Albericus  de  Rosate,  de  stat.,  lib.  ii.,  q.  2,  §§  7,  10,  15;  Petr.  Ravenn., 
de  stat.,  sect.  2,  §  51  sq. 

*  He  was  a  professor  of  law  in  the   University  of  Pisa  ;  was  born  in  1314, 
and  died  in  1357.     He  wrote  commentaries  on  the  three  parts  of  the  Digest 
and  Code,  —  Concilia,  Tractatus,  and  Questiones. 

*  Especially  lib.  i.,  tit.  4,  pres.  6,  de  stat. 


620 


THE  SCIENCE  OF  JURISPRUDENCE 


J.  Henry. 


Chassat. 

Roden- 
burg. 


mining  the  status  and  capacity  of  a  person;  that  only  when 
special  exceptions  had  been  made  by  the  free  permission  of 
the  authority  of  the  state  could  the  judge,  who  could  only 
carry  out  its  will,  apply  any  but  the  law  of  his  own  country. 
As  such  special  exceptions,  sanctioned  by  long  practice,  he 
treated  the  rules  that  movables  are  regularly  judged  by  the 
law  of  the  domicile  of  the  person  that  owns  them,  and  the  ex- 
ternal forms  of  a  legal  transaction  by  the  laws  of  the  place 
where  it  is  entered  into.  As  late  as  1823  J.  Henry  published 
his  Treatise  on  the  Difference  between  Personal  and  Real 
Statutes;  and  in  1845  appeared  a  Traite  des  Statute,  lois 
personnelles  et  reelles,  et  du  droit  international  prive,  by 
M.  de  Chassat.  In  1653  a  definite  name  was  first  given 
to  such  discussions  by  Rodenburg,  who  prefixed  to  his 
Tractatus  de  jure  conjugam  his  Tractatus  de  jure  quod  oritur 
ex  statutorum  vel  consuetudinum  discrepantium  conflictu, 
in  which  he  rested  the  theory  of  statuta  personalia,  realia, 
and  mixta  upon  the  proposition  that  the  legislator  cannot 
lay  down  rules  for  things  that  are  situated  in  a  foreign 
country,  or  for  persons  who  are  domiciled  there.1  According 
to  his  view,  personal  statutes  confer  on  the  person  a  quality 
that  adheres  to  him;  otherwise  a  man  might  be  of  full  age 
in  one  place,  and  a  minor  in  another.  In  1661  followed  Paul 

Paul  Voet.  Voet's  De  statutis  eorumque  concursu,  in  which,  after  assuming 
the  division  of  statuta  into  real,  personal,  and  mixed  to  be 
fundamental,  he  deduces  from  the  independence  of  the  dif- 
ferent territories  the  conclusion  that  a  personal  statute, 
strictly  construed,  will  not  affect  subjects  of  a  state  who  are 
temporarily  absent  in  another,  admitting  at  the  same  time 
that  no  legislator  can  lay  down  rules  for  foreigners  who 
happen  to  be  for  a  time  in  his  dominions,  as  regards  their 

Huber.         capacity  or  incapacity.    In  1686  appeared  Huber's  famous 


1  Tit.  i.,  cap.  3,  no.  1.     He  admits,  however,  that  it  is  possible  to  lay  down 
such  rules  indirectly  (loc.  cit.,  no.  5). 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  621 

chapter  De  conflictu  legum,1  in  which  he  brings  to  the  front, 
even  more  emphatically  than  Voet,  the  independence  of  the 
different  territories,  by  maintaining  at  the  outset  that  the 
laws  of  a  state  have  no  force  except  within  that  state  where 
they  are  good  for  all  persons  who  are  found  within  it.    The 
strictness  of  that  axiom  is,  he  says,  modified  only  by  the 
friendly  intercourse  that  exists  among  the  different  states, 
and  by  the  comitas  they  observe.    Thus,  as  the  application 
of  foreign  laws  is  permitted,  so  far  as  it  is  not  repugnant  to 
the  supremacy  of  the  sovereign  power  of  a  state,  the  laws  of 
the  place  where  any  legal  transaction  is  entered  into  should 
determine  its  validity,  just  as  the  qualities  of  persons,  which 
are  stamped  upon  them  in  the  same  way,  should  be  deter- 
mined by  the  law  of  their  domicile,  while  all  the  legal  relations 
of   immovables  should  be  settled  by  the  laws  of  the  place 
where  the  thing  is.    In  obedience  with  that  rule,  he  applies 
the  lex  rei  sitae,  not  only  to  testate  and  intestate  succession 
in  movables,  but  even  to  contracts  that  concern  movables. 
In  1688  appeared  the  De  collisione  legum 2  of  Hertius,  in  Hertius. 
which  he  attempts  to  establish  the  validity  of  the  lex  domicilii, 
in  relation  to  the  status  and  capacity  of  persons,  upon  the 
ground  that  the  sway  of  a  state  over  foreigners  is  confined 
to  the  transactions  they  enter  into  upon  its  soil,  or  to  the 
immovables  they  possess  there.     In  1715  appeared  Meiern's  Meiem. 
De  statutorum  conflictu  eorumque  apud  exteros  valore;  in  1740, 
Alef's  De  diversorum  statutorum  concursu  eorumque  conflictu  Alef. 
dissertatio;   in  1792,  Ham's  De  statutorum  collisione  et  prae-  Ham. 
ferentia;  in  1828,  Livermore's  On  the  Contrariety  of  Laws;  Livennore. 
in  1831,  Brinkmann's  Von  dem  Widerspruche  ausldndischer  Brinkmann. 
und  einheimischer  Gesetze;  in  1834,  Story's  Conflict  of  Laws;  story. 
in    1841,  Schaffner's  Die  Entwickelung  des  Internationalen  Schaffner. 

1  In  his  Praelectiones  juris  Romani,  pt.  ii.,  as  appendix  to  tit.  3,  lib.  i.,  de 
legibus.     Francquerae,  1699. 

*  In  the  Opuscula,  i.,  pp.  118-164. 


622 


THE  SCIENCE  OF  JURISPRUDENCE 


Wachter. 
Foelix. 

Hosack. 
Pfeiffer. 
Westlake. 
Phillimore. 

Bar. 
Fiore. 

Wharton. 

Haus. 

Lomonaco. 

Brocher. 

Foote. 

Asser. 

Von  Piitt- 

lingen. 

Laurent. 

Fiore. 
Dicey. 

Minor. 

Two 

groups  of 
basic  prin- 
ciples. 


Privatrechts ;  in  1841  and  1842,  Wachter's  Uber  die  Collision 
der  Privatrechtsgesetze  verschiedener  staaten;  *  in  1843,  Foelix's 
Traite  du  droit  international  prive,  ou  du  conflit  des  lois  en 
matiere  de  droit  prive;2  in  1847,  J.  Hosack's  Conflict  of 
Laws;  in  1851,  Pfeiffer's  Das  Princip  des  Intemationalen 
Privatrechts;  in  1858.  Westlake's  Private  International  Law, 
or  the  Conflict  of  Laws;  in  1861,  Sir  Robert  Phillimore's 
volume  On  Private  International  Law,  or  Comity;  in 
1862,  von  Bar's  Das  Internationale  Privat-  und  Strafrecht;3 
in  1869,  Fiore's  Diritto  internazionale  privato,  o  principii  per 
resolvere  i  conflitti  tra  kgislazioni  diverse  in  materia  di 
diritto  civile  e  commerciak;  in  1872,  Wharton's  Conflict  of  Laws; 
in  1874,  Haus's  Le  droit  prive  qui  regit  les  etrangers  en  Belgique 
and  Lomonaco's  Trattato  di  diritto  civile  internazionale; 
in  1876,  Brocher's  Nouveau  traite  du  droit  Internationale 
prive;  in  1878,  Foote's  Private  International  Jurisprudence, 
Asser's  Schets  van  het  intemationaal  Privaatregt,  and  von 
Piittlingen's  Handbuch  des  in  Oesterreich-Ungarn  geltenden 
intemationalen  Privatrechts;  in  1880,  Laurent's  first  volume 
of  the  Droit  civil  international  and  Fiore's  Droit  penal  inter- 
national (translated  by  C.  Antoine) ;  in  1896,  Dicey's  Digest 
of  the  Law  of  England  with  reference  to  the  Conflict  of  Laws;  and 
in  1901,  Minor's  Conflict  of  Laws,  or  Private  International  Law. 
6.  The  vital  principles  of  the  immature  yet  growing  inter- 
national system,  if  system  it  may  be  called,  for  the  prevention 
of  conflict  of  laws  may  be  arranged  in  two  groups,  the  first  of 
which  adheres  closely  to  the  original  idea  of  an  exclusive  sov- 
ereign and  legislative  authority  in  each  territory.  In  the 
first  group  must  be  placed  the  five  instances  wherein  it  is 


1  See  Archiv  fur  civ.  Praxis,  Bd.  xxiv..  p.  230;  xxv.,  p.  1. 

2  4th  ed.,  Paris,  1866,  Remie  et  augmentee  par  Demangcat.     This  treatise  is  a 
republication  of  a  series  of  articles  "du  conflit  des  lois  de  differentes  nations,  ou 
du  droit  international"  begun  by  Foelix  in  1840. 

*  The  edition  of  1889  is  restricted  to  Privatrecht.     Private  International  Law, 
trans,  by  G.  R.  Gillespie,  2d  ed.,  1892. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  623 

generally  considered  that  the  municipal  law  of  the  state  in  Five  in- 
which  the  question  is  raised  (lex fan)  forbids  the  enforcement  wWcha"1 
of  a  foreign  law.     (1)  Where  the  enforcement  of  the  foreign  foreis"  |aw 

cannot  be 

law  will  contravene  the  express  statute  law  or  an  established  enforced, 
policy  of  the  forum,  or  is  injurious  to  its  interests ;  *  (2)  where 
the  enforcement  of  such  foreign  law  would  involve  injustice 
and  injury  to  the  people  of  the  forum; 2   (3)  where  such  en- 
forcement would  contravene  the  canons  of  morality  established 
by  civilized  society ; s  (4)  where  the  foreign  law  is  penal  in  its 
nature;4    (5)  where  the  question  relates  to  land  or  immov- 
able  property  of    any    kind.5      Since    immovable  property  immovable 
is  fixed   forever  in  the  state  where   it   lies,  and  since  no  property' 
other   state   can  have   any  jurisdiction  over  it,  it   follows 
necessarily  that  no  right,  title,  or   interest   can  be  finally 
acquired  therein  unless  assented  to  by  the  courts  of  that 
state,  in  accordance  with  the  lex  loci  rei  sitae  or  lex  situs.    As 
the  policy  of  each  state  in  reference  to  the  transfer  of  immov- 
able property  within  its  limits  is  ranked  among  the  most 
important  of  all  its  policies,  no  outside  interference  with  it 
can  be  tolerated.    Not  until  all  the  cases  covered  by  the  prin- 
ciples embraced  in  the  first  group  have  been  excluded  is  the 
field  clear  for  the  statement  of  the  principles  embraced  in  the 
second.    After  such  exclusion  has  been  made,  the  rules  for 
the  prevention  of  conflict  of  laws  may  be  said  to  relate  to  Transac- 
all  transactions  containing  a  foreign  element.    If   any  given  ^"foreign 
transaction  arises  wholly  within  a  single  state,  all  the  parties  element- 

1  Smith  v.  Union  Bank,  5  Peters  518,  527 ;  Green  v.  Van  Buskirk,  7  WalL 
139;  May  v.  Bank,  122  111.  551 ;  Frank  v.  Babbitt,  155  Mass.  112,  115. 

*  Green  v.  Van  Buskirk,  5  Wall.  307,  312 ;    Pennoyer  v.  Neff,  95  U.S.  714, 
723;  Cole  v.  Cunningham,  133  U.S.  107,  126;  Barnettr.  Kmney,  147  U.S.  476; 
Gilman  v.  Ketchum,  84  Wis.  60. 

*  Woodworth  v.  Spring,  4  Allen  (Mass.)  321 ;    Bank  v.  Williams,  46  Miss. 
618;   Hilton  v.  Guyot,  159  U.S.  113. 

«The  Antelope,  10  Wheat.  66,  123;  Huntington  v.  Attrill,  146  U.S.  657, 
666;  Com.  v.  Green,  17  Mass.  515,  539-540;  Succession  of  Hernandez,  46 
La.  Ann.  962. 

«  United  States  v.  Crosby,  7  Cranch  115;  Clark  v.  Graham,  6  Wheat.  577; 
Ross  v.  Ross,  129  Mass.  243,  245. 


624 


THE  SCIENCE  OF  JURISPRUDENCE 


Applica- 
tion of  law 
(Anwend- 
ung der 
Gesetzc) . 


How  the 
validity  of 
of  a  trans- 
action is  to 
be  tested. 


Every  ele- 
ment con- 
trolled by 
the  law  of 
its  situs. 


interested  having  been,  and  continuing  to  be,  domiciled  and 
actually  present  therein,  the  question  being  raised  there  also, 
no  foreign  element  exists  to  cause  any  interference  with  the 
regular  enforcement  of  the  law  of  that  state  in  the  domestic 
tribunals.  In  such  a  case  there  can  be  no  question  as  to  the 
state  having  the  jurisdiction  to  apply  the  law  to  the  facts ;  nor 
can  there  be  any  question  as  to  the  proper  law  to  be  applied.1 
No  doubt  can  arise  in  such  a  case  either  as  to  the  appropriate 
forum  or  as  to  the  appropriate  lex.  But  if  one  or  more  of  the 
parties  live  in  another  state,  or  the  transaction  or  some  part  of 
it  has  arisen  elsewhere,  a  foreign  element  is  at  once  imported 
into  the  case,  and  it  may  be  necessary  to  inquire  whether  the 
court  is  to  be  governed  in  its  decision  by  the  domestic  law,  by 
the  law  of  the  place  where  the  parties  or  some  of  them  are 
domiciled,  by  the  law  of  the  place  where  the  transaction  or  part 
of  it  arose,  or  by  the  law  of  the  place  where  property  affected 
thereby  may  be  situated.  As  the  completed  transaction  may 
be  made  up  of  all  these  various  elements,  its  ultimate  validity 
will  in  general  depend  upon  the  validity  of  each  of  its  constitu- 
ent parts  when  tested  by  the  proper  law.  If,  when  so  tested, 
each  element  is  valid,  then  the  transaction  as  a  whole  will  be 
valid;  but  if  one  or  more  of  the  essential  steps  be  invalid, 
when  measured  by  its  proper  law,  neither  can  the  transaction 
as  a  whole  be  in  general  sustained.  Every  element  in 
every  transaction  known  to  the  law  has  a  situs  somewhere, 
and  the  law  of  that  situs  will  regulate  and  control  the  legal 
effect  of  that  element.  Hence,  in  order  to  arrive  at  a  correct 
solution  of  the  law  which  is  to  govern  a  particular  transac- 
tion, that  transaction  must  be  resolved  into  all  its  essential 

1  As  to  the  phrase  "Application  of  Law"  ("Anwendung  der  Gezetze"),  in- 
volving the  question  of  the  choice  of  the  law  to  be  applied,  see  the  treatise  of 
Oerstadt  (1822),  "Uber  die  Anwendung  fremder  Gesetze"  (Eunomia,  i.,  pp. 
1-105) ;  Struve's  (1834)  "  Uber  das  positive  Rechtsgesetz  in  seiner  Beziehung  auj 
r&umliche  Verh&ltnisse  und  uber  die  Anwendung  der  Gezetze  verschiedener 
Oerter";  and  also  certain  incidental  expressions  occurring  in  Savigny's  System, 
viii.  15,  32,  109. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  625 

parts,  and  to  each  of  these  parts  the  law  of  its  own  situs  must 
be  applied.    The  elements  of  a  given  transaction  may  be  Active 
active,  dependent  on  the  will  of  the  party  himself;   or  they 
may  be  passive,  arising  by  act  of  the  law.    If  a  party  has 
once  performed  the  particular  act  at  the  place  selected,  the 
effect  of  the  act  must  in  general  be  determined  by  the  law  of 
the  place  where  it  is  done.    This  is  expressed  by  the  maxim, 
locus  regit  actum.    The  party  should  not  be  permitted  to 
select  one  place  for  the  doing  of  the  act  in  question  and  then 
to  select  the  law  of  a  different  place  to  govern  that  act,  for 
that  would  be  to  subordinate  the  sovereignty  of  the  first 
state  to  the  will  of  the  individual.    Where  the  elements  of 
the  transaction  are  passive,  that  is,  where  they  arise  by  the  passive 
act  of  the  law,  —  as  a  capacity  of  a  party  to  do  an  act  or  receive  elemento- 
a  benefit,  taxation  of  property,  the  succession  to  a  decedent's 
property,  adjudications  of  insolvency  or  bankruptcy,  marital 
rights,  and  the  like,  —  such  elements  must  also  have  a  situs 
somewhere.    If  the  law  acts  upon  the  person  (and  it  must 
act  either  upon  the  person  or  upon  property),  the  act  of  the 
law  will  generally  have  the  same  situs  as  the  person,  because, 
if  the  person  be  not  actually  or  constructively  present  within 
its  jurisdiction,  the  act  of  the  law  is  nugatory.    If  the  law  acts 
upon  property,  the  situs  of  the  act  of  the  law  follows  the  situs 
of  the  property;    in  other  words,  the  property  must  have 
its  situs,  actually  or  in  contemplation  of  law,  within  the  juris- 
diction of  the  law  purporting  to  act  upon  it.1    Such  are  the 
basic  principles  by  which  the  situs  of  every  element  in  a  HOW  the 
transaction,  having  a  foreign  element,  is  ascertained.    When  element"!™ 
the  situs  of  the  element  is  ascertained,  the  law  of  that  situs  ascertained, 
will  regulate  and  control  the  legal  effect  of  that  element.2    In 

1  This  is  well  put  by  Minor,  Conflict  of  Laws,  an  admirable  work,  §  17. 

3  Modern  legislation  and  court  practice,  as  Savigny  has  well  said,  aim  not 
to  keep  up  local  sovereignty  and  jurisdiction  by  a  strict  enforcement  of  the 
lex  fori,  but  to  decide  all  jural  relations  without  respect  to  territorial  limits, 
according  to  the  inner  nature  and  needs  of  each  one  of  them.  See  Guthrie's 
trans.,  pp.  144-145. 
28 


626  THE  SCIENCE  OF  JURISPRUDENCE 

that  way  is  ascertained  the  proper  law  to  govern  the  case. 
As  a  general  rule  it  is  far  more  difficult  to  ascertain  the  proper 
law,  the  appropriate  lex  applicable  to  the  particular  case,  than 
it  is  to  ascertain  what  court  has  jurisdiction  to  try  it  rati&ne 

Possible  territorii.1  Courts  of  the  country  in  which  the  defendant 
happens  to  be,  or  of  the  country  in  which  the  plaintiff,  or 
defendant,  is  domiciled,  or  to  which  he  owes  allegiance,  or  of 
the  country  in  which  the  object  in  dispute  is  situated,  or  of 
the  country  in  which  the  juristic  act  in  question  (such  as  a 
marriage,  or  a  sale,  or  the  making  of  a  will)  took  place,  or  of 
the  country  in  which  the  wrongful  act  in  question  was  com- 
mitted, or  of  the  country  in  which  a  contract  was  to  bear  its 
fruits,  or  that  in  which  the  plaintiff  chooses  to  commence  his 
action,  are  all  courts  in  which  proceedings  may  possibly  be 

Questions      taken.    Thus  the  courts  of  each  country  are  called  upon, 

courts  *must  from  time  to  time,  to  decide  not  only  as  to  their  own  compe- 
tence, but  as  to  the  competence  of  the  courts  of  other  states, 
especially  when  it  is  necessary  to  determine  whether  or  no 
their  decrees  can  be  recognized  under  the  technical  descrip- 
tion of  "foreign  judgments." 

Nomen-  7.  As  the  true  nature  of  the  rules  or  understandings  for  the 

prevention  of  conflict  of  laws  has  now  been  ascertained  from 
the  history  of  their  development,  it  should  not  be  difficult  to 
form  a  phrase  descriptive  of  them.  Their  true  nature  was 
never  more  clearly  defined  than  in  the  case  of  Hilton  v.  Guyot,2 

Comity  in  which  it  was  said  that  "Comity  is  neither  matter  of  abso- 
lute obligation  nor  of  mere  courtesy  and  good  will.  It  is  the 
recognition  which  one  nation  allows  within  its  territory  to  the 
legislative,  executive,  or  judicial  acts  of  another  nation,  having 

1  In  defending  that  phrase,  Holland  says  it  "seems  better  adapted  than  its 
older  equivalent  'jurisdiction  ratione  personae,'  to  distinguish  the  question 
stated  in  the  text  from  questions  as  to  'jurisdiction  ratione  materiae,'  's&chliche 
Zust&ndigkeit,'  i.e.  as  to  the  proper  court,  within  a  given  territory,  for  the  trial 
of  a  particular  class  of  actions."  Jurisprudence,  p.  398,  note  1. 

a  159  U.S.  113.     Opinion  by  Mr.  Justice  Gray. 


RULES  TO  PREVENT  CONFLICT  OF  LAWS  627 

due  regard  both  to  international  duty  and  convenience  and 
to  the  rights  of  its  own  citizens  or  of  other  persons  who  are 
under  the  protection  of  the  laws."  l  The  "recognition"  thus  states 

ftsscnt  to 

allowed  by  one  nation  to  another  is  an  assent  to  such  rules  the  rules  in 
expressed  through  that  organ  of  sovereignty  known  as  the 


judicial  power.     No  state  can  assent  to  an  international  rule  iudlcial 

power. 

in  a  method  more  orthodox.     In  the  case  of  Queen  v.  Keyn,2 
wherein  the  manner  in  which  a  nation  should  assent  to  an 
international  rule  was  a  vital  issue,  it  was  held  that  the  as- 
sent of  a  nation  to  such  a  rule,  as  was  in  question  in  that  case, 
must  be  manifested  by  some  formal  act  performed  by  it  in  its 
sovereign  capacity,  —  such,  for  instance,  in  the  case  of  Great 
Britain,  as  an  act  of  Parliament  or  the  judgment  of  a  compe- 
tent tribunal.    As  the  assent  of  states  has  thus  been  given  to  the 
rules  in  question,  they  are  certainly  international  rules.    The 
laws  of  the  state  actually  enforced  within  the  territory  of 
another  are  national  laws  ;  the  rules  by  virtue  of  which  they  are 
enforced  are  international  rules.     In  describing  such  rules,  Sir  AS  inter- 
Henry  Maine  has  referred  to  them  as  "prescribing  the  condi-  rules  nal 
tions  on  which  one  community  will  recognize  and  apply  a 
portion  of  the  jurisdiction  of  another."  3    If  we  add  the  mani- 
fest purpose  for  which  such  rules  were  made,  the  phrase  com- 
pletes itself,  —  "  International  Rules  for  the  Prevention  of  a  for  the  pre- 
Conflict  of  Laws."    When  the  shorter  phrase,  "Conflict  of  ^conflict  of 
Laws,"  is  used  simply  as  an  abbreviation,  it  is  unobjectionable.  Laws-" 
But  as  this  body  of  rules  is  intended  only  to  prevent  conflict 
in  matters  of  purely  individual  right,  it  should  be  considered 
as  subsidiary  to  that  more  august  body  of  rules  known  as 
International  Law  proper,  which  is  strictly  confined  to  the 
relation  of  states  with  states.    Therefore  the  phrases,  "In- 
ternational Law"  and  "Conflict  of  Laws,"  the  latter  being 

1  In  the  language  of  Huber,  "Rectores  imperiorum  id  comiter  agunt  ut  jura 
cujusque  populi  intra  terminos  ejus  exercita  teneant  ubique  suam  vim."  Prael- 
juris  Romani,  pars  ii  ad  Pandect,  lib.  i.,  tit.  3. 

8  L.R.,  2  Exchequer  Division,  pp.  63-239.        *  International  Law,  p.  17. 


628  THE  SCIENCE  OF  JURISPRUDENCE 

"inter-  used  as  an  abbreviation,  are,  as  descriptions  of  the  two  sets 
Law°°and  of  rules  in  question,  preferable  to  all  others.  As  early  as 
"Conflict  of  ig^  Chancellor  Kent,  in  the  first  volume  of  his  Commentaries, 

Laws. 

said  that  "a  recent  French  writer  (M.  Victor  Faucher)  divides 
the  law  of  nations  into  two  branches :  (1)  public  international 
law,  which  regulates  the  political  relation  of  nations  to 
nations;  and  (2)  private  international  law,  which,  though 
based  upon  the  first,  regulates  the  reciprocal  and  personal 
relations  of  the  inhabitants  of  different  states."  *  At  the 
conclusion  of  this  volume  the  author  desires  to  confess  that  he 
heretofore  acted  unwisely  in  adopting  these  phrases,  derived 
by  Kent  from  Faucher,  subject  as  they  are  to  many  serious 
objections.3 

1  Commentaries,  2,  note  a,  ed.  of  1851. 
*  Taylor,  International  Public  Law,  p.  155. 


APPENDIX 

THE  EPOCH-MAKING  TRACT  OF  PELATIAH  WEB- 
STER, IN  WHICH  15  EMBODIED  THE  FIRST  DRAFT 
OF  THE  EXISTING  CONSTITUTION  OF  THE  UNITED 
STATES : 

A 

DISSERTATION      ' 

ON    THE 

POLITICAL    UNION 

AND 

CONSTITUTION 

OF    THE 

THIRTEEN  UNITED  STATES 

OF 

NORTH    AMERICA, 

which  is  necessary  to  their  Preservation  and  Happiness; 
humbly  offered  to  the  Public. 

(First  published  in  Philadelphia,  1783.) 

I.  The  supreme  authority  of  any  State  must  have  power 
enough  to  effect  the  ends  of  its  appointment,  otherwise  these 
ends  cannot  be  answered,   and  effectually  secured;    at  best 
they  are  precarious.  —  But  at  the  same  time, 

II.  The   supreme   authority   ought  to   be   so   limited   and 
checked,  if  possible,  as  to  prevent  the  abuse  of  power,  or  the 
exercise  of  powers  that  are  not  necessary  to  the  ends  of  its 
appointment,  but  hurtful  and  oppressive  to  the  subject;   but 
to  limit  a  supreme  authority  so  far  as  to  diminish  its  dignity, 
or  lessen  its  power  of  doing  good,  would  be  to  destroy  or  at 
least  to  corrupt  it,  and  render  it  ineffectual  to  its  ends. 

III.  A  number  of  sovereign  States  uniting  into  one  Com- 

629 


630  APPENDIX 

monwealth,  and  appointing  a  supreme  power  to  manage  the 
affairs  of  the  Union,  do  necessarily  and  unavoidably  part 
with  and  transfer  over  to  such  supreme  power,  so  much  of 
their  own  sovereignty  as  is  necessary  to  render  the  ends  of 
the  union  effectual,  otherwise  their  confederation  will  be  an 
union  without  bands  of  union,  like  a  cask  without  hoops, 
that  may  and  probably  will  fall  to  pieces,  as  soon  as  it  is  put 
to  any  exercise  which  requires  strength. 

In  like  manner,  every  member  of  civil  society  parts  with 
many  of  his  natural  rights,  that  he  may  enjoy  the  rest  in 
greater  security  under  the  protection  of  society. 

The  Union  of  the  Thirteen  States  of  America  is  of  mighty 
consequence  to  the  security,  sovereignty,  and  even  liberty  of 
each  of  them,  and  of  all  the  individuals  who  compose  them; 
united  under  a  natural,  well  adjusted,  and  effectual  Consti- 
tution, they  are  a  strong,  rich,  growing  power,  with  great 
resources  and  means  of  defence,  which  no  foreign  power  will 
easily  attempt  to  invade  or  insult;  they  may  easily  command 
respect. 

As  their  exports  are  mostly  either  raw  materials  or  pro- 
visions, and  their  imports  mostly  finished  goods,  their  trade 
becomes  a  capital  object  with  every  manufacturing  nation  of 
Europe,  and  all  the  southern  colonies  of  America;  their  friend- 
ship and  trade  will  of  course  be  courted,  and  each  power  in 
amity  with  them  will  contribute  to  their  security. 

Their  union  is  of  great  moment  in  another  respect;  they 
thereby  form  a  superintending  power  among  themselves, 
that  can  moderate  and  terminate  disputes  that  may  arise 
between  different  States,  restrain  intestine  violence,  and 
prevent  any  recourse  to  the  dreadful  decision  of  the  sword. 

I  do  not  mean  here  to  go  into  a  detail  of  all  the  advantages 
of  our  union;  they  offer  themselves  on  every  view,  and  are 
important  enough  to  engage  every  honest,  prudent  mind,  to 
secure  and  establish  that  union  by  every  possible  method, 
that  we  may  enjoy  the  full  benefit  of  it,  and  be  rendered  happy 
and  safe  under  the  protection  it  affords. 

This  union,  however  important,  cannot  be  supported  with- 


APPENDIX  631 

out  a  Constitution  founded  on  principles  of  natural  truth, 
fitness,  and  utility.  If  there  is  one  article  wrong  in  such 
Constitution,  it  will  discover  itself  in  practice,  by  its  baleful 
operation,  and  destroy  or  at  least  injure  the  union. 

Many  nations  have  been  ruined  by  the  errors  of  their  political 
constitution.  Such  errors  first  introduce  wrongs  and  injuries, 
which  soon  breed  discontents,  which  gradually  work  up  into 
mortal  hatred  and  resentments;  hence  inveterate  parties  are 
formed,  which  of  course  make  the  whole  community  a  house 
divided  against  itself,  which  soon  falls  either  a  prey  to  some 
enemies  without,  who  watch  to  devour  them,  or  else  crumble 
into  their  original  constituent  parts,  and  lose  all  respectability, 
strength,  and  security. 

It  is  as  physically  impossible  to  secure  to  civil  society,  good 
cement  of  union,  duration,  and  security  without  a  Constitu- 
tion founded  on  principles  of  natural  fitness  and  right,  as  to 
raise  timbers  into  a  strong,  compact  building,  which  have 
not  been  framed  upon  true  geometric  principles;  for  if  you 
cut  one  beam  a  foot  too  long  or  too  short,  not  all  the  author- 
ity and  all  the  force  of  all  the  carpenters  can  ever  get  it  into 
its  place,  and  make  it  fit  with  proper  symmetry  there. 

As  the  fate  then  of  all  governments  depends  much  upon 
their  political  constitutions,  they  become  an  object  of  mighty 
moment  to  the  happiness  and  well-being  of  society;  and  as 
the  framing  of  such  a  Constitution  requires  great  knowledge 
of  the  rights  of  men  and  societies,  as  well  as  of  the  interests, 
circumstances,  and  even  prejudices  of  the  several  parts  of 
the  community  or  commonwealth,  for  which  it  is  intended; 
it  becomes  a  very  complex  subject,  and  of  course  requires 
great  steadiness  and  comprehension  of  thought,  as  well  as 
great  knowledge  of  men  and  things,  to  do  it  properly.  I 
shall,  however,  attempt  it  with  my  best  abilities,  and  hope 
from  the  candor  of  the  public  to  escape  censure,  if  I  cannot 
merit  praise. 

I  begin  with  my  first  and  great  principle,  viz.:  That  the 
Constitution  must  vest  powers  in  every  department  sufficient 
to  secure  and  make  effectual  the  ends  of  it.  The  supreme 


632  APPENDIX 

authority  must  have  the  power  of  making  war  and  peace  — 
of  appointing  armies  and  navies  —  of  appointing  officers  both 
civil  and  military  —  of  making  contracts  —  of  emitting,  coin- 
ing, and  borrowing  money  —  of  regulating  trade  —  of  making 
treaties  with  foreign  powers  —  of  establishing  post-offices  — 
and  in  short  of  doing  everything  which  the  well-being  of  the 
Commonwealth  may  require,  and  which  is  not  compatible  to 
any  particular  State,  all  of  which  require  money,  and  cannot 
possibly  be  made  effectual  without  it. 

They  must  therefore  of  necessity  be  vested  with  power  of 
taxation.  I  know  this  is  a  most  important  and  weighty 
truth,  a  dreadful  engine  of  oppression,  tyranny,  and  injury, 
when  ill  used;  yet,  from  the  necessity  of  the  case,  it  must 
be  admitted. 

For  to  give  a  supreme  authority  a  power  of  making  con- 
tracts, without  any  power  of  payment  —  of  appointing  officers 
civil  and  military,  without  money  to  pay  them  —  a  power  to 
build  ships,  without  any  money  to  do  it  with  —  a  power  of 
emitting  money,  without  any  power  to  redeem  it  —  or  of  bor- 
rowing money,  without  any  power  to  make  payment,  etc., 
etc.  —  such  solecisms  in  government  are  so  nugatory  and 
absurd,  that  I  really  think  to  offer  further  argument  on  the 
subject,  would  be  to  insult  the  understanding  of  my 
readers. 

To  make  all  these  payments  dependent  on  the  votes  of 
thirteen  popular  assemblies,  who  will  undertake  to  judge  of 
the  propriety  of  every  contract  and  every  occasion  of  money, 
and  grant  or  withhold  supplies,  according  to  their  opinion, 
whilst  at  the  same  time  the  operations  of  the  whole  may  be 
stopped  by  the  vote  of  a  single  one  of  them,  is  absurd;  for 
this  renders  all  supplies  so  precarious  and  the  public  credit 
so  extremely  uncertain,  as  must  in  its  nature  render  all  efforts 
in  war,  and  all  regular  administration  in  peace,  utterly  im- 
practicable, as  well  as  most  pointedly  ridiculous.  Is  there  a 
man  to  be  found  who  would  lend  money,  or  render  personal 
services,  or  make  contracts  on  such  precarious  security?  Of 
this  we  have  a  proof  of  fact,  the  strongest  of  all  proofs,  a  fatal 


APPENDIX  633 

experience,  the  surest  tho'  severest  of  all  demonstration,  which 
renders  all  other  proof  or  argument  on  this  subject  quite 
unnecessary. 

The  present  broken  state  of  our  finances  —  public  debts 
and  bankruptcies  —  enormous  and  ridiculous  depreciation  of 
public  securities  —  with  the  total  annihilation  of  our  public 
credit  —  prove  beyond  all  contradiction  the  vanity  of  all 
recourse  to  the  federal  Assemblies  of  the  States.  The  recent 
instance  of  the  duty  of  5  per  cent  on  imported  goods,  struck 
dead,  and  the  bankruptcies  which  ensued  on  the  single  vote 
of  Rhode  Island,  affords  another  proof  of  what  it  is  certain 
may  be  done  again  in  like  circumstances. 

I  have  another  reason  why  a  power  of  taxation  or  of  rais- 
ing money,  ought  to  be  vested  in  the  supreme  authority  of 
our  commonwealth,  viz.,  the  monies  necessary  for  the  public 
ought  to  be  raised  by  a  duty  imposed  on  imported  goods,  not 
a  bare  5  per  cent  or  any  other  per  cent  on  all  imported  goods 
indiscriminately,  but  a  duty  much  heavier  on  all  articles  of 
luxury  or  mere  ornament,  and  which  are  consumed  princi- 
pally by  the  rich  or  prodigal  part  of  the  community,  such  as 
silks  of  all  sorts,  muslins,  cambricks,  lawns,  superfine  cloths, 
spirits,  wines,  etc.,  etc. 

Such  an  impost  would  ease  the  husbandman,  the  mechanic, 
and  the  poor ;  would  have  all  the  practical  effects  of  a  sumptu- 
ary law;  would  mend  the  economy,  and  increase  the  industry, 
of  the  community;  would  be  collected  without  the  shocking 
circumstances  of  collectors  and  their  warrants;  and  make  the 
quantity  of  tax  paid,  always  depend  on  the  choice  of  the 
person  who  pays  it. 

This  tax  can  be  laid  by  the  supreme  authority  much  more 
conveniently  than  by  the  particular  Assemblies,  and  would 
in  no  case  be  subject  to  their  repeals  or  modifications;  and 
of  course  the  public  credit  would  never  be  dependent  on,  or 
liable  to  bankruptcy  by  the  humors  of  any  particular  Assem- 
bly. In  an  Essay  on  Finance,  which  I  design  soon  to  offer 
to  the  public,  this  subject  will  be  treated  more  fully.  (See 
my  Sixth  Essay  on  Free  Trade  and  Finance,  p.  229.) 


634  APPENDIX 

The  delegates  which  are  to  form  that  august  body,  which 
are  to  hold  and  exercise  the  supreme  authority,  ought  to  be 
appointed  by  the  States  in  any  manner  they  please;  in  which 
they  should  not  be  limited  by  any  restrictions;  their  own 
dignity  and  the  weight  they  will  hold  in  the  great  public  coun- 
cils, will  always  depend  on  the  abilities  of  the  persons  they 
appoint  to  represent  them  there;  and  if  they  are  wise  enough 
to  choose  men  of  sufficient  abilities,  and  respectable  characters, 
men  of  sound  sense,  extensive  knowledge,  gravity,  and  integrity, 
they  will  reap  the  honor  and  advantage  of  such  wisdom. 

But  if  they  are  fools  enough  to  appoint  men  of  trifling  or 
vile  characters,  of  mean  abilities,  faulty  morals,  or  despicable 
ignorance,  they  must  reap  the  fruits  of  such  folly,  and  con- 
tent themselves  to  have  no  weight,  dignity,  or  esteem  in  the 
public  councils;  and,  what  is  more  to  be  lamented  by  the 
Commonwealth,  to  do  no  good  there. 

I  have  no  objection  to  the  States  electing  and  recalling 
their  delegates  as  often  as  they  please,  but  think  it  hard  and 
very  injurious  both  to  them  and  the  Commonwealth  that  they 
should  be  obliged  to  discontinue  them  after  three  years'  service, 
if  they  find  them  on  that  trial  to  be  men  of  sufficient  integrity 
and  abilities;  a  man  of  that  experience  is  certainly  much  more 
qualified  to  serve  in  the  place,  than  a  new  member  of  equal 
good  character  can  be;  experience  makes  perfect  in  every 
kind  of  business  —  old,  experienced  statesmen,  of  tried  and 
approved  integrity  and  abilities,  are  a  great  blessing  to  a  State 
—  they  acquire  great  authority  and  esteem  as  well  as  wisdom, 
and  very  much  contribute  to  keep  the  system  of  government 
in  good  and  salutary  order;  and  this  furnishes  the  strongest 
reason  why  they  should  be  continued  in  the  service,  on  Plato's 
great  maxim,  that  "the  man  best  qualified  to  serve,  ought  to 
be  appointed." 

I  am  sorry  to  see  a  contrary  maxim  adopted  in  our  Ameri- 
can counsels;  to  make  the  highest  reason  that  can  be  given 
for  continuing  a  man  in  the  public  administration,  assigned 
as  a  constitutional  and  absolute  reason  for  turning  him  out, 
seems  to  me  to  be  a  solecism  of  a  piece  with  many  other 


APPENDIX  635 

reforms,  by  which  we  set  out  to  surprise  the  world  with 
our  wisdom. 

If  we  should  adopt  this  maxim  in  the  common  affairs  of 
life,  it  would  be  found  inconvenient,  e.g.,  if  we  should  make 
it  a  part  of  our  Constitution,  that  a  man  who  has  served  a 
three  years'  apprenticeship  to  the  trade  of  a  tailor  or  shoe- 
maker, should  be  obliged  to  discontinue  that  business  for  the 
three  successive  years,  I  am  of  opinion  the  country  would 
soon  be  cleared  of  good  shoemakers  and  tailors.  —  Men  are 
no  more  born  statesmen  than  shoemakers  or  tailors  —  Experi- 
ence is  equally  necessary  to  perfection  in  both. 

It  seems  to  me  that  a  man's  inducement  to  qualify  himself 
for  a  public  employment,  and  make  himself  master  of  it,  must 
be  much  discouraged  by  this  consideration,  that  let  him  take 
whatever  pains  to  qualify  himself  in  the  best  manner,  he  must 
be  shortly  turned  out,  and  of  course  it  would  be  of  more  con- 
sequence to  him,  to  turn  his  attention  to  some  other  business, 
which  he  might  adopt  when  his  present  appointment  should 
expire;  and  by  this  means  the  Commonwealth  is  in  danger 
of  losing  the  zeal,  industry,  and  shining  abilities,  as  well  as 
services,  of  their  most  accomplished  and  valuable  men. 

I  hear  that  the  State  of  Georgia  has  improved  on  this  blessed 
principle,  and  limited  the  continuance  of  their  governors  to  one 
year;  the  consequence  is,  they  have  already  the  ghosts  of 
departed  governors  stalking  about  in  every  part  of  their  State, 
and  growing  more  plenty  every  year;  and  as  the  price  of  every- 
thing is  reduced  by  its  plenty,  I  can  suppose  governors  will 
soon  be  very  low  there. 

This  doctrine  of  rotation  was  first  proposed  by  some 
sprightly  geniuses  of  brilliant  politics,  with  this  cogent 
reason;  that  by  introducing  a  rotation  in  the  public  offices, 
we  should  have  a  great  number  of  men  trained  up  to  public 
service;  but  it  appears  to  me  that  it  will  be  more  likely  to 
produce  many  jacks  at  all  trades,  but  good  at  none. 

I  think  that  frequent  elections  are  a  sufficient  security 
against  the  continuance  of  men  in  public  office  whose  conduct 
is  not  approved,  and  there  can  be  no  reason  for  excluding 


636  APPENDIX 

those  whose  conduct  is  approved,  and  who  are  allowed  to  be 
better  qualified  than  any  men  who  can  be  found  to  supply 
their  places. 

Another  great  object  of  government,  is  the  apportionment 
of  burdens  and  benefits;  for  if  a  greater  quota  of  burden,  or 
a  less  quota  of  benefits  than  is  just  and  right,  be  allotted  to 
any  State,  this  ill  apportionment  will  be  an  everlasting  source 
of  uneasiness  and  discontent.  In  the  first  case,  the  over- 
burdened State  will  complain;  in  the  last  case,  all  the  States, 
whose  quota  of  benefit  is  under-rated,  will  be  uneasy;  and 
this  is  a  case  of  such  delicacy,  that  it  cannot  be  safely  trusted 
to  the  arbitrary  opinion  or  judgment  of  any  body  of  men 
however  august. 

Some  natural  principles  of  confessed  equity,  and  which  can 
be  reduced  to  a  certainty,  ought,  if  possible,  to  be  found  and 
adopted;  for  it  is  of  the  highest  moment  to  the  Common- 
wealth, to  obviate,  and,  if  possible,  wholly  to  take  away,  such 
a  fruitful  and  common  source  of  infinite  disputes,  as  that  of 
apportionment  of  quotas  has  ever  proved  in  all  States  of  the 
earth. 

The  value  of  lands  may  be  a  good  rule;  but  the  ascertain- 
ment of  that  value  is  impracticable;  no  assessment  can  be 
made  which  will  not  be  liable  to  exception  and  debate  —  to 
adopt  a  good  rule  in  anything  which  is  impracticable,  is  ab- 
surd; for  it  is  physically  impossible  that  anything  should 
be  good  for  practice,  which  cannot  be  practised  at  all;  but  if 
the  value  of  lands  was  capable  of  certain  assessment,  yet  to 
adopt  that  value  as  a  rule  of  apportionment  of  quotas,  and 
at  the  same  time  to  except  from  valuation  large  tracts  of 
sundry  States  of  immense  value,  which  have  all  been  defended 
by  the  joint  arms  of  the  whole  Empire,  and  for  the  defence 
of  which  no  additional  quota  of  supply  is  to  be  demanded  of 
those  States,  to  whom  such  lands  are  secured  by  such  joint 
efforts  of  the  States,  is  in  its  nature  unreasonable,  and  will 
open  a  door  for  great  complaint. 

It  is  plain  without  argument,  that  such  States  ought  either 
to  make  grants  to  the  Commonwealth  of  such  tracts  of 


APPENDIX  637 

defended  territory,  or  sell  as  much  of  them  as  will  pay  their 
proper  quota  of  defence,  and  pay  such  sums  into  the  public 
treasury;  and  this  ought  to  be  done,  let  what  rule  of  quota 
forever  be  adopted  with  respect  to  the  cultivated  part  of  the 
United  States;  for  no  proposition  of  natural  right  and  justice 
can  be  plainer  than  this,  that  every  part  of  valuable  property 
which  is  defended,  ought  to  contribute  its  quota  of  supply 
for  that  defence. 

If  then  the  value  of  cultivated  lands  is  found  to  be  an  im- 
practicable rule  of  apportionment  of  quotas,  we  have  to  seek 
for  some  other,  equally  just  and  less  exceptionable. 

It  appears  to  me,  that  the  number  of  living  souls  or  human 
persons  of  whatever  age,  sex,  or  condition,  will  afford  us  a 
rule  or  measure  of  apportionment  which  will  forever  increase 
and  decrease  with  the  real  wealth  of  the  States,  and  will  of 
course  be  a  perpetual  rule,  not  capable  of  corruption  by  any 
circumstances  of  future  time;  which  is  of  vast  consideration 
in  forming  a  constitution  which  is  designed  for  perpetual  dura- 
tion, and  which  will  in  its  nature  be  as  just  as  to  the  inhabited 
parts  of  each  State,  as  that  of  the  value  of  lands,  or  any  other 
that  has  or  can  be  mentioned. 

Land  takes  its  value  not  merely  from  the  goodness  of  its 
soil,  but  from  innumerable  other  relative  advantages  among 
which  the  population  of  the  country  may  be  considered  as 
principal ;  as  lands  in  a  full  settled  country  will  always  (caeteris 
paribus)  bring  more  than  lands  in  thin  settlements.  On  this 
principle,  when  the  inhabitants  of  Russia,  Poland,  etc.,  sell 
real  estates,  they  do  not  value  them  as  we  do,  by  the  number 
of  acres,  but  by  the  number  of  people  who  live  on  them. 

Where  any  piece  of  land  has  many  advantages,  many  people 
will  crowd  there  to  obtain  them;  which  will  create  many 
competitors  for  the  purchase  of  it;  which  will  of  course  raise 
the  price.  Where  there  are  fewer  advantages,  there  will  be 
fewer  competitors,  and  of  course  a  less  price;  and  these  two 
things  will  forever  be  proportionate  to  each  other,  and  of 
course  the  one  will  always  be  a  sure  index  of  the  other. 

The  only  considerable  objection  I  have  ever  heard  to  this, 


638  APPENDIX 

is,  that  the  quality  of  inhabitants  differs  in  the  different  States, 
and  it  is  not  reasonable  that  the  black  slaves  in  the  southern 
States  should  be  estimated  on  a  par  with  the  white  freemen 
in  the  northern  States.  To  discuss  this  question  fairly,  I 
think  it  will  be  just  to  estimate  the  neat  value  of  the  labor 
of  both;  and  if  it  shall  appear  that  the  labor  of  the  black 
person  produces  as  much  neat  wealth  to  the  southern  State, 
as  the  labor  of  the  white  person  does  to  the  northern  State, 
I  think  it  will  follow  plainly,  that  they  are  equally  useful  inhab- 
itants in  point  of  wealth;  and  therefore  in  the  case  before  us, 
should  be  estimated  alike. 

And  if  the  amazing  profits  which  the  southern  planters 
boast  of  receiving  from  the  labor  of  their  slaves  on  their  plan- 
tations, are  real,  the  southern  people  have  greatly  the  advan- 
tage in  this  kind  of  estimation,  and  as  this  objection  comes 
principally  from  the  southward,  I  should  suppose  that  the 
gentlemen  from  that  part  would  blush  to  urge  it  any  farther. 

That  the  supreme  authority  should  be  vested  with  powers 
to  terminate  and  finally  decide  controversies  arising  between 
different  States,  I  take  it,  will  be  universally  admitted,  but  I 
humbly  apprehend  that  an  appeal  from  the  first  instance  of 
trial  ought  to  be  admitted  in  causes  of  great  moment,  on  the 
same  reasons  that  such  appeals  are  admitted  in  all  the  States 
of  Europe.  It  is  well  known  to  all  men  versed  in  courts, 
that  the  first  hearing  of  a  cause,  rather  gives  an  opening  to 
that  evidence  and  reason  which  ought  to  decide  it,  than  such 
a  full  examination  and  thorough  discussion,  as  should  always 
precede  a  final  judgment,  in  causes  of  national  consequence. 
A  detail  of  reasons  might  be  added,  which  I  deem  it  unnecessary 
to  enlarge  on  here. 

The  supreme  authority  ought  to  have  a  power  of  peace 
and  war,  and  forming  treaties  and  alliances  with  all  foreign 
powers;  which  implies  a  necessity  of  their  also  having  suffi- 
cient powers  to  enforce  the  obedience  of  all  subjects  of  the 
United  States  to  such  treaties  and  alliances;  with  full  powers 
to  unite  the  force  of  the  States;  and  direct  its  operations 
in  war;  and  to  punish  all  transgressors  in  all  these  respects; 


APPENDIX  639 

otherwise,  by  the  imprudence  of  a  few,  the  whole  Common- 
wealth may  be  embroiled  with  foreign  powers,  and  the  opera- 
tions of  war  may  be  rendered  useless,  or  fail  much  of  their 
due  effect. 

All  these  I  conceive  will  be  easily  granted,  especially  the 
latter,  as  the  power  of  Congress  to  appoint  and  direct  the 
army  and  navy  in  war,  with  all  departments  thereto  belong- 
ing, and  punishing  delinquents  in  them  all,  is  already  admitted 
into  practice  in  the  course  of  the  present  unhappy  war,  in  which 
we  have  been  long  engaged. 

IV.  But  now  the  great  and  most  difficult  part  of  this  weighty 
subject  remains  to  be  considered,  viz.,  how  these  supreme 
powers  are  to  be  constituted  in  such  manner  that  they  may 
be  able  to  exercise  with  full  force  and  effect,  the  vast  authorities 
committed  to  them,  for  the  good  and  well-being  of  the  United 
States,  and  yet  be  so  checked  and  restrained  from  exercising 
them  to  the  injury  and  ruin  of  the  States,  that  we  may  with 
safety  trust  them  with  a  commission  of  such  vast  magnitude 
—  and  may  Almighty  wisdom  direct  my  pen  in  this  arduous 
discussion. 

1.  The  men  who  compose  this  important  council,  must  be 
delegated  from  all  the  States;  and,  of  course,  the  hope  of 
approbation  and  continuance  of  honors,  will  naturally  stimu- 
late them  to  act  rightly,  and  to  please;  the  dread  of  censure 
and  disgrace  will  naturally  operate  as  a  check  to  restrain  them 
from  improper  behavior:  but  however  natural  and  forcible 
these  motives  may  be,  we  find  by  sad  experience,  they  are  not 
always  strong  enough  to  produce  the  effects  we  expect  and 
wish  from  them. 

It  is  to  be  wished  that  none  might  be  appointed  that  were 
not  fit  and  adequate  to  this  weighty  business;  but  a  little 
knowledge  of  human  nature,  and  a  little  acquaintance  with 
the  political  history  of  mankind,  will  soon  teach  us  that  this 
is  not  to  be  expected. 

The  representatives  appointed  by  popular  elections  are 
commonly  not  only  the  legal,  but  real,  substantial  representa- 
tives of  their  electors,  i.e.,  there  will  commonly  be  about  the 


640  APPENDIX 

same  proportion  of  grave,  sound,  well-qualified  men,  trifling, 
desultory  men  —  wild  or  knavish  schemers  —  and  dull,  igno- 
rant fools,  in  the  delegated  assembly,  as  in  the  body  of  electors. 

I  know  of  no  way  to  help  this;  such  delegates  must  be 
admitted,  as  the  States  are  pleased  to  send;  and  all  that  can 
be  done  is,  when  they  get  together,  to  make  the  best  of  them. 

We  will  suppose  then  they  are  all  met  in  Congress,  clothed 
with  that  vast  authority  which  is  necessary  to  the  well-being, 
and  even  existence,  of  the  union,  that  they  should  be  vested 
with;  how  shall  we  empower  them  to  do  all  necessary  and 
effectual  good,  and  restrain  them  from  doing  hurt?  To  do 
this  properly,  I  think  we  must  recur  to  those  natural  motives 
of  action,  those  feelings  and  apprehensions,  which  usually 
occur  to  the  mind  at  the  very  time  of  action;  for  distant  con- 
sequences, however  weighty,  are  often  too  much  disregarded. 

Truth  loves  light,  and  is  vindicated  by  it.  Wrong  shrouds 
itself  in  darkness,  and  is  supported  by  delusion.  An  honest 
well-qualified  man  loves  light,  can  bear  close  examination, 
and  critical  inquiry,  and  is  best  pleased  when  he  is  most  thor- 
oughly understood:  a  man  of  corrupt  design,  or  a  fool  of  no 
design,  hates  close  examination  and  critical  inquiry;  the 
knavery  of  the  one,  and  the  ignorance  of  the  other,  are  dis- 
covered by  it,  and  they  both  usually  grow  uneasy,  before  the 
investigation  is  half  done.  I  do  not  believe  that  there  is  a 
more  natural  truth  in  the  world,  than  that  divine  one  of  our 
Saviour,  "he  that  doth  truth,  cometh  to  the  light."  I  would 
therefore  recommend  that  mode  of  deliberation,  which  will 
naturally  bring  on  the  most  thorough  and  critical  discussion 
of  the  subject,  previous  to  passing  any  act;  and  for  that  pur- 
pose humbly  propose, 

2.  That  the  Congress  shall  consist  of  two  chambers,  an 
upper  and  a  lower  house,  or  senate  and  commons,  with  the 
concurrence  of  both  necessary  to  every  act;  and  that  every 
State  send  one  or  more  delegates  to  each  house :  this  will  sub- 
ject every  act  to  two  discussions  before  two  distinct  chambers 
of  men  equally  qualified  for  the  debate,  equally  masters  of 
the  subject,  and  of  equal  authority  in  the  decision. 


APPENDIX  641 

These  two  houses  will  be  governed  by  the  same  natural 
motives  and  interests,  viz.,  the  good  of  the  Commonwealth, 
and  the  approbation  of  the  people.  Whilst  at  the  same  time, 
the  emulation  naturally  arising  between  them,  will  induce  a 
very  critical  and  sharp-sighted  inspection  into  the  motions  of 
each  other.  Their  different  opinions  will  bring  on  confer- 
ences between  the  two  houses,  in  which  the  whole  subject  will 
be  exhausted  in  arguments  pro  and  con,  and  shame  will  be  the 
portion  of  obstinate,  convicted  error. 

Under  these  circumstances,  a  man  of  ignorance  or  evil 
design  will  be  afraid  to  impose  on  the  credulity,  inattention, 
or  confidence  of  his  house,  by  introducing  any  corrupt  or 
indigested  proposition,  which  he  knows  he  must  be  called 
on  to  defend  against  the  severe  scrutiny  and  poignant  objec- 
tions of  the  other  house.  I  do  not  believe  the  many  hurtful 
and  foolish  legislative  acts  which  first  or  last  have  injured  all 
the  States  on  earth,  have  originated  so  much  in  corruption 
as  indolence,  ignorance,  and  a  want  of  a  full  comprehension 
of  the  subject,  which  a  full,  prying  and  emulous  discussion 
would  tend  in  a  great  measure  to  remove:  this  naturally 
rouses  the  lazy  and  idle,  who  hate  the  pain  of  close  think- 
ing; animates  the  ambitious  to  excel  in  policy  and  argument; 
and  excites  the  whole  to  support  the  dignity  of  their  house, 
and  vindicate  their  own  propositions. 

I  am  not  of  opinion  that  bodies  of  elective  men,  which 
usually  compose  Parliaments,  Diets,  Assemblies,  Congresses, 
etc.,  are  commonly  dishonest:  but  I  believe  it  rarely  happens 
that  there  are  not  designing  men  among  them;  and  I  think 
it  would  be  much  more  difficult  for  them  to  unite  their  parti- 
sans in  two  houses,  and  corrupt  or  deceive  them  both,  than 
to  carry  on  their  designs  where  there  is  but  one  unalarmed, 
unapprehensive  house  to  be  managed;  and  as  there  is  no 
hope  of  making  these  bad  men  good,  the  best  policy  is  to 
embarrass  them,  and  make  their  work  as  difficult  as  possible. 

In  these  assemblies  are  frequently  to  be  found  sanguine 
men,  upright  enough  indeed,  but  of  strong,  wild  projection, 
whose  brains  are  always  teeming  with  Utopian,  chimerical 

2T 


642  APPENDIX 

plans,  and  political  whims,  very  destructive  to  society.  I 
hardly  know  a  greater  evil  than  to  have  the  supreme  council 
of  a  Nation  played  off  on  such  men's  wires;  such  baseless 
visions  at  best  end  in  darkness,  and  the  dance,  though  easy 
and  merry  enough  at  first,  rarely  fails  to  plunge  the  credu- 
lous, simple  followers  into  sloughs  and  bogs  at  last. 

Nothing  can  tend  more  effectually  to  obviate  these  evils, 
and  to  mortify  and  cure  such  maggoty  brains,  than  to  see 
the  absurdity  of  their  projects  exposed  by  the  several  argu- 
ments and  keen  satire  which  a  full,  emulous,  and  spirited 
discussion  of  the  subject  will  naturally  produce:  we  have 
had  enough  of  these  geniuses  in  the  short  course  of  our  poli- 
tics, both  in  our  national  and  provincial  councils,  and  have 
felt  enough  of  their  evil  effects,  to  induce  us  to  wish  for  any 
good  method  to  keep  ourselves  clear  of  them  in  future. 

The  consultations  and  decisions  of  national  councils  are 
so  very  important,  that  the  fate  of  millions  depends  on  them, 
therefore  no  man  ought  to  speak  in  such  assemblies,  without 
considering  that  the  fate  of  millions  hangs  on  his  tongue, 
—  and  of  course  a  man  can  have  no  right  in  such  august  coun- 
cils to  utter  indigested  sentiments,  or  indulge  himself  in 
sudden,  unexamined  nights  of  thought;  his  most  tried  and 
improved  abilities  are  due  to  the  State,  who  have  trusted  him 
with  their  most  important  interests. 

A  man  must  therefore  be  most  inexcusable,  who  is  either 
absent  during  such  debates,  or  sleeps,  or  whispers,  or  catches 
flies  during  the  argument,  and  just  rouses  when  the  vote  is 
called,  to  give  his  yea  or  nay,  to  the  weal  or  woe  of  a  nation. 
Therefore  it  is  manifestly  proper,  that  every  natural  motive 
that  can  operate  on  his  understanding,  or  his  passions,  to 
engage  his  attention  and  utmost  efforts,  should  be  put  in  prac- 
tice, and  that  his  present  feelings  should  be  raised  by  every 
motive  of  honor  and  shame,  to  stimulate  him  to  every  prac- 
ticable degree  of  diligence  and  exertion,  to  be  as  far  as  possible 
useful  in  the  great  discussion. 

I  appeal  to  the  feelings  of  every  reader,  if  he  would  not 
(were  he  in  either  house)  be  much  more  strongly  and  naturally 


APPENDIX  643 

induced  to  exert  his  utmost  abilities  and  attention  to  any 
question  which  was  to  pass  through  the  ordeal  of  a  spirited 
discussion  of  another  house,  than  he  would  do,  if  the  absolute 
decision  depended  on  his  own  house,  without  any  further 
inquiry  or  challenge  on  the  subject. 

As  Congress  will  ever  be  composed  of  men  delegated  by 
the  several  States,  it  may  well  be  supposed  that  they  have 
the  confidence  of  their  several  States,  and  understand  well 
the  policy  and  present  condition  of  them;  it  may  also  be 
supposed  that  they  come  with  strong  local  attachments, 
and  habits  of  thinking  limited  to  the  interests  of  their  par- 
ticular States;  it  may  therefore  be  supposed  they  will  need 
much  information,  in  order  to  their  gaining  that  enlargement 
of  ideas,  and  great  comprehension  of  thought,  which  will  be 
necessary  to  enable  them  to  think  properly  on  that  large 
scale,  which  takes  into  view  the  interests  of  all  the  States. 

The  greatest  care  and  wisdom  is  therefore  requisite  to  give 
them  the  best  and  surest  information,  and  of  that  kind  that 
may  be  the  most  safely  relied  on,  to  prevent  their  being  deluded 
or  prejudiced  by  partial  representations,  made  by  interested 
men  who  have  particular  views. 

This  information  may  perhaps  be  best  made  by  the  great 
ministers  of  state,  who  ought  to  be  men  of  the  greatest  abilities 
and  integrity;  their  business  is  confined  to  their  several  de- 
partments, and  their  attention  engaged  strongly  and  con- 
stantly to  all  the  several  parts  of  the  same ;  the  whole  arrange- 
ment, method,  and  order  of  which,  are  formed,  superintended, 
and  managed  in  their  offices,  and  all  information  relative  to 
their  department  centre  there. 

These  ministers  will  of  course  have  the  best  information, 
and  most  perfect  knowledge,  of  the  state  of  the  Nation,  as  far 
as  it  relates  to  their  several  departments,  and  will  of  course  be 
able  to  give  the  best  information  to  Congress,  in  what  manner 
any  bill  proposed  will  affect  the  public  interest  in  their  several 
departments,  which  will  nearly  comprehend  the  whole. 

The  Financiers  manage  the  whole  subject  of  revenues  and 
expenditures  —  the  Secretary  of  State  takes  knowledge  of 


644  APPENDIX 

the  general  policy  and  internal  government  —  the  minister 
of  war  presides  in  the  whole  business  of  war  and  defence  — 
and  the  minister  of  foreign  affairs  regards  the  whole  state  of 
the  nation,  as  it  stands  related  to,  or  connected  with,  all  foreign 
powers. 

I  mention  a  Secretary  of  State,  because  all  other  nations 
have  one,  and  I  suppose  we  shall  need  one  as  much  as  they, 
and  the  multiplicity  of  affairs  which  naturally  fall  into  his 
office  will  grow  so  fast,  that  I  imagine  we  shall  soon  be  under 
the  necessity  of  appointing  one. 

To  these  I  would  add  Judges  of  Law,  and  Chancery;  but 
I  fear  they  will  not  be  very  soon  appointed  —  the  one  sup- 
poses the  existence  of  law,  the  other  of  equity  —  and  when 
we  shall  be  altogether  convinced  of  the  absolute  necessity 
of  the  real  and  effectual  existence  of  both  of  these,  we  shall 
probably  appoint  proper  heads  to  preside  in  those  depart- 
ments. I  would  therefore  propose, 

3.  That  when  any  bill  shall  pass  the  second  reading  in 
the  house  in  which  it  originates,  and  before  it  shall  be  finally 
enacted,  copies  of  it  shall  be  sent  to  each  of  the  said  ministers 
of  state,  in  being  at  the  time,  who  shall  give  said  house  in 
writing,  the  fullest  information  in  their  power,  and  their 
most  explicit  sentiments  of  the  operation  of  the  said  bill  on 
the  public  interest,  as  far  as  relates  to  their  respective 
departments,  which  shall  be  received  and  read  in  said  house, 
and  entered  on  their  minutes,  before  they  finally  pass  the 
bill;  and  when  they  send  the  bill  for  concurrence  to  the  other 
house,  they  shall  send  therewith  the  said  informations  of  the 
said  ministers  of  state,  which  shall  likewise  be  read  in  that 
house  before  their  concurrence  is  finally  passed. 

I  do  not  mean  to  give  these  great  ministers  of  state  a  nega- 
tive on  Congress,  but  I  mean  to  oblige  Congress  to  receive 
their  advices  before  they  pass  their  bills,  and  that  every  act 
shall  be  void  that  is  not  passed  with  these  forms ;  and  I  further 
propose,  that  either  house  of  Congress  may,  if  they  please, 
admit  the  said  ministers  to  be  present  and  assist  in  the  debates 
of  the  house,  but  without  any  right  of  vote  in  the  decision. 


APPENDIX  645 

It  appears  to  me  that  if  every  act  shall  pass  so  many  dif- 
ferent corps  of  discussion  before  it  is  completed,  where  each 
of  them  stake  their  characters  on  the  advice  or  vote  they  give, 
there  will  be  all  the  light  thrown  on  the  case,  which  the  nature 
and  circumstances  of  it  can  admit,  and  any  corrupt  man  will 
find  it  extremely  difficult  to  foist  in  any  erroneous  clause  what- 
ever; and  every  ignorant  or  lazy  man  will  find  the  strongest 
inducements  to  make  himself  master  of  the  subject,  that  he 
may  appear  with  some  tolerable  degree  of  character  in  it;  and 
the  whole  will  find  themselves  in  a  manner  compelled,  dili- 
gently and  sincerely  to  seek  'for  the  real  state  of  the  facts, 
and  the  natural  fitness  and  truths  arising  from  them,  i.e., 
the  whole  natural  principles  on  which  the  subject  depends, 
and  which  alone  can  endure  every  test,  to  the  end  that  they 
may  have  not  only  the  inward  satisfaction  of  acting  properly 
and  usefully  for  the  States,  but  also  the  credit  and  character 
which  is  or  ought  ever  to  be  annexed  to  such  a  conduct. 

This  will  give  the  great  laws  of  Congress  the  highest  prob- 
ability, presumption,  and  means  of  right,  fitness,  and  truth, 
that  any  laws  whatever  can  have  at  their  first  enaction  and 
will  of  course  afford  the  highest  reason  for  the  confidence 
and  acquiescence  of  the  States,  and  all  their  subjects,  in  them; 
and  being  grounded  in  truth  and  natural  fitness,  their  opera- 
tions will  be  easy,  salutary,  and  satisfactory. 

If  experience  shall  discover  error  in  any  law  (for  practice 
will  certainly  discover  such  errors,  if  there  be  any)  the  legis- 
lature will  always  be  able  to  correct  them,  by  such  repeals, 
amendments,  or  new  laws  as  shall  be  found  necessary;  but 
as  it  is  much  easier  to  prevent  mischiefs  than  to  remedy  them, 
all  possible  caution,  prudence,  and  attention  should  be  used, 
to  make  the  laws  right  at  first. 

4.  There  is  another  body  of  men  among  us,  whose  busi- 
ness of  life,  and  whose  full  and  extensive  intelligence,  for- 
eign and  domestic,  naturally  make  them  more  perfectly  ac- 
quainted with  the  sources  of  our  wealth,  and  whose  particular 
interests  are  more  intimately  and  necessarily  connected  with 
the  general  prosperity  of  the  country,  than  any  other  order  of 


646  APPENDIX 

men  in  the  States.  I  mean  the  Merchants;  and  I  could  wish 
that  Congress  might  have  the  benefit  of  that  extensive  and 
important  information,  which  this  body  of  men  are  very 
capable  of  laying  before  them. 

Trade  is  of  such  essential  importance  to  our  interests,  and 
so  intimately  connected  with  all  our  staples,  great  and  small, 
that  no  sources  of  our  wealth  can  flourish,  and  operate  to  the 
general  benefit  of  the  community,  without  it.  Our  husbandry, 
that  great  staple  of  our  country,  can  never  exceed  our  home 
consumption  without  this  —  it  is  plain  at  first  sight,  that  the 
farmer  will  not  toil  and  sweat  through  the  year  to  raise  great 
plenty  of  the  produce  of  the  soil,  if  there  is  no  market  for  his 
produce,  when  he  has  it  ready  for  sale,  i.e.,  if  there  are  no 
merchants  to  buy  it. 

In  like  manner,  the  manufacturer  will  not  lay  out  his  busi- 
ness on  any  large  scale,  if  there  is  no  merchant  to  buy  his 
fabrics  when  he  has  finished  them ;  a  vent  is  of  the  most  essen- 
tial importance  to  every  manufacturing  country  —  the  mer- 
chants, therefore,  become  the  natural  negotiators  of  the  wealth 
of  the  country,  who  take  off  the  abundance,  and  supply  the 
wants,  of  the  inhabitants ;  —  and  as  this  negotiation  is  the  busi- 
ness of  their  lives,  and  the  source  of  their  own  wealth,  they  of 
course  become  better  acquainted  with  both  our  abundance  and 
wants,  and  are  more  interested  in  finding  and  improving  the 
best  vent  for  the  one,  and  supply  of  the  other,  than  any  other 
men  among  us,  and  they  have  a  natural  interest  in  making 
both  the  purchase  and  supply  as  convenient  to  their  customers 
as  possible,  that  they  may  secure  their  custom,  and  thereby 
increase  their  own  business. 

It  follows  then,  that  the  merchants  are  not  only  qualified 
to  give  the  fullest  and  most  important  information  to  our 
supreme  legislature,  concerning  the  state  of  our  trade  —  the 
abundance  and  wants  —  the  wealth  and  poverty,  of  our  people, 
i.e.,  their  most  important  interests,  but  are  also  the  most 
likely  to  do  it  fairly  and  truly,  and  to  forward  with  their  influ- 
ence, every  measure  which  will  operate  to  the  convenience 
and  benefit  of  our  commerce,  and  oppose  with  their  whole 


APPENDIX  647 

weight  and  superior  knowledge  of  the  subject,  any  wild  schemes, 
which  an  ignorant  or  arbitrary  legislature  may  attempt  to 
introduce,  to  the  hurt  and  embarrassment  of  our  intercourse 
both  with  one  another,  and  with  foreigners. 

The  States  of  Venice  and  Holland  have  ever  been  governed 
by  merchants,  or  at  least  their  policy  has  ever  been  under 
the  great  influence  of  that  sort  of  men.  No  States  have  been 
better  served,  as  appears  by  their  great  success,  the  ease  and 
happiness  of  their  citizens,  as  well  as  the  strength  and  riches 
of  their  Commonwealths:  the  one  is  the  oldest,  and  the  other 
the  richest,  State  in  the  world  of  equal  number  of  people  — 
the  one  has  maintained  sundry  wars  with  the  Grand  Turk 
—  the  other  has  withstood  the  power  of  Spain  and  France ; 
and  the  capitals  of  both  have  long  been  the  principal  marts 
of  the  several  parts  of  Europe  in  which  they  are  situated ;  and 
the  banks  of  both  are  the  best  supported,  and  in  the  best  credit, 
of  any  banks  in  Europe,  though  their  countries  or  territories 
are  very  small,  and  their  inhabitants  but  a  handful,  when  com- 
pared with  the  great  States  in  their  neighborhood. 

Merchants  must,  from  the  nature  of  their  business,  certainly 
understand  the  interests  and  resources  of  their  country,  the 
best  of  any  men  in  it;  and  I  know  not  of  any  one  reason  why 
they  should  be  deemed  less  upright  or  patriotic,  than  any  other 
rank  of  citizen  whatever. 

I  therefore  humbly  propose,  if  the  merchants  in  the  several 
States  are  disposed  to  send  delegates  from  their  body,  to  meet 
and  attend  the  sitting  of  Congress,  that  they  shall  be  per- 
mitted to  form  a  chamber  of  commerce,  and  their  advice  to 
Congress  be  demanded  and  admitted  concerning  all  bills 
before  Congress,  as  far  as  the  same  may  affect  the  trade  of 
the  States. 

I  have  no  idea  that  the  continent  is  made  for  Congress:  I 
take  them  to  be  no  more  than  the  upper  servants  of  the  great 
political  body,  who  are  to  find  out  things  by  study  and  inquiry 
as  other  people  do;  and  therefore  I  think  it  necessary  to  place 
them  under  the  best  possible  advantages  for  information,  and 
to  require  them  to  improve  all  those  advantages,  to  qualify 


648  APPENDIX 

themselves  in  the  best  manner  possible,  for  the  wise  and  use- 
ful discharge  of  the  vast  trust  and  mighty  authority  reposed 
in  them;  and  as  I  conceive  the  advice  of  the  merchants  to  be 
one  of  the  greatest  sources  of  mercantile  information,  which 
is  anywhere  placed  within  their  reach,  it  ought  by  no  means 
to  be  neglected,  but  so  husbanded  and  improved,  that  the 
greatest  possible  advantages  may  be  derived  from  it. 

Besides  this,  I  have  another  reason  why  the  merchants 
ought  to  be  consulted;  I  take  it  to  be  very  plain  that  the  hus- 
bandry and  manufactures  of  the  country  must  be  ruined, 
if  the  present  rate  of  taxes  is  continued  on  them  much  longer, 
and  of  course  a  very  great  part  of  our  revenue  must  arise  from 
imposts  on  merchandise,  which  will  fall  directly  within  the 
merchants'  sphere  of  business,  and  of  course  their  concurrence 
and  advice  will  be  of  the  utmost  consequence,  not  only  to 
direct  the  properest  mode  of  levying  those  duties,  but  also  to 
get  them  carried  into  quiet  and  peaceable  execution. 

No  men  are  more  conversant  with  the  citizens,  or  more 
intimately  connected  with  their  interests,  than  the  merchants, 
and  therefore  their  weight  and  influence  will  have  a  mighty 
effect  on  the  minds  of  the  people.  I  do  not  recollect  an  in- 
stance, in  which  the  Court  of  London  ever  rejected  the  remon- 
strances and  advices  of  the  merchants,  and  did  not  suffer 
severely  for  their  pride.  We  have  some  striking  instances  of 
this  in  the  disregarded  advices  and  remonstrances  of  very 
many  English  merchants  against  the  American  war,  and  their 
fears  and  apprehensions  we  see  verified,  almost  like  prophecies 
by  the  event. 

I  know  not  why  I  should  continue  this  argument  any  longer 
or  indeed  why  I  should  have  urged  it  so  long,  in  as  much  as 
I  cannot  conceive  that  Congress  or  anybody  else  will  deem  it 
below  the  dignity  of  the  supreme  power  to  consult  so  important 
an  order  of  men,  in  matters  of  the  first  consequence,  which  fall 
immediately  under  their  notice,  and  in  which  their  experience, 
and  of  course  their  knowledge  and  advice,  are  preferable  to 
those  of  any  other  order  of  men. 

Besides  the  benefits  which  Congress  may  receive  from  this 


APPENDIX  649 

institution,  a  chamber  of  commerce,  composed  of  members 
from  all  trading  towns  in  the  States,  if  properly  instituted 
and  conducted,  will  produce  very  many,  I  might  almost  say, 
innumerable  advantages  of  singular  utility  to  all  the  States 

—  it  will  give  dignity,  uniformity,  and  safety  to  our  trade  — 
establish  the  credit  of  the  bank  —  secure  the  confidence  of 
foreign  merchants  —  prove  in  very  many  instances  a  fruitful 
source  of  improvement  of  our  staples  and  mutual  intercourse 

—  correct   many   abuses  —  pacify    discontents  —  unite   us  in 
our  interests,  and  thereby  cement  the  general  union  of  the 
whole  Commonwealth  —  will  relieve  Congress  from  the  pain 
and  trouble  of  deciding  many  intricate  questions  of  trade  which 
they  do  not  understand,  by  referring  them  over  to  this  chamber, 
where  they  will  be  discussed  by  an  order  of  men,  the  most 
competent  to  the  business  of  any  that  can  be  found,  and  most 
likely  to  give  a  decision  that  shall  be  just,  useful,  and  satis- 
factory. 

It  may  be  objected  to  all  this,  that  the  less  complex  and 
the  more  simple  every  constitution  is,  the  nearer  it  comes  to 
perfection:  this  argument  would  be  very  good,  and. afford  a 
very  forcible  conclusion,  if  the  government  of  men  was  like 
that  of  the  Almighty,  always  founded  on  wisdom,  knowledge 
and  truth ;  but  in  the  present  imperfect  state  of  human  nature, 
where  the  best  of  men  know  but  in  part,  and  must  recur  to 
advice  and  information  for  the  rest,  it  certainly  becomes 
necessary  to  form  a  constitution  on  such  principles,  as  will 
secure  that  information  and  advice  in  the  best  and  surest 
manner  possible. 

It  may  be  further  objected  that  the  forms  herein  proposed 
will  embarrass  the  business  of  Congress,  and  make  it  at  best 
slow  and  dilatory.  As  far  as  this  form  will  prevent  the  hurrying 
a  bill  through  the  house  without  due  examination,  the  objection 
itself  becomes  an  advantage  —  at  most  these  checks  on  the 
supreme  authority  can  have  no  further  effect  than  to  delay 
or  destroy  a  good  bill,  but  cannot  pass  a  bad  one ;  and  I  think 
it  much  better  in  the  main,  to  lose  a  good  bill  than  to  suffer 
a  bad  one  to  pass  into  a  law.  —  Besides  it  is  not  to  be  supposed 


650  APPENDIX 

that  clear,  plain  cases  will  meet  with  embarrassment,  and  it 
is  most  safe  that  untried,  doubtful,  difficult  matters  should 
pass  through  the  gravest  and  fullest  discussion,  before  the 
sanction  of  the  law  is  given  to  them. 

But  what  is  to  be  done  if  the  two  houses  grow  jealous  and 
ill-natured,  and  after  all  their  information  and  advice,  grow 
out  of  humor  and  insincere,  and  no  concurrence  can  be  ob- 
tained? I  answer,  sit  still  and  do  nothing  until  they  get 
into  a  better  humor:  I  think  this  is  much  better  than  to  pass 
laws  in  such  a  temper  and  spirit,  as  the  objection  supposes. 

It  is,  however,  an  ill  compliment  to  so  many  grave  personages, 
to  suppose  them  capable  of  throwing  aside  their  reason,  and 
giving  themselves  up  like  children  to  the  control  of  their  pas- 
sions; or,  if  this  should  happen  for  a  moment,  that  it  should 
continue  any  length  of  time,  is  hardly  to  be  presumed  of  a 
body  of  men  placed  in  such  high  stations  of  dignity  and  im- 
portance, with  the  eyes  of  all  the  world  upon  them  —  but 
if  they  should,  after  all,  be  capable  of  this,  I  think  it  madness 
to  set  them  to  making  laws,  during  such  fits  —  it  is  best,  when 
they  are  in  no  condition  to  do  good,  to  keep  them  from  doing 
hurt  —  and  if  they  do  not  grow  wiser  in  reasonable  time,  I 
know  of  nothing  better,  than  to  be  ashamed  of  our  old  appoint- 
ments, and  make  new  ones. 

But  what  if  the  country  is  invaded,  or  some  other  exigency 
happens,  so  pressing  that  the  safety  of  the  State  requires  an 
immediate  resolution?  I  answer,  what  would  you  do  if  such 
a  case  should  happen,  where  there  was  but  one  house,  un- 
checked, but  equally  divided,  so  that  a  legal  vote  could  not  be 
obtained.  The  matter  is  certainly  equally  difficult  and  em- 
barrassed in  both  cases:  but  in  the  case  proposed  I  know  of 
no  better  way  than  that  which  the  Romans  adopted  on  the 
like  occasion,  viz.,  that  both  houses  meet  in  one  chamber, 
and  choose  a  dictator,  who  should  have  and  exercise  the  whole 
power  of  both  houses,  till  such  time  as  they  should  be  able 
to  concur  in  displacing  him,  and  that  the  whole  power  of  the 
two  houses  should  be  suspended  in  the  meantime. 

5.   I  further  propose,   that  no  grant  of  money  whatever 


APPENDIX  651 

shall  be  made,  without  an  appropriation,  and  that  rigid  pen- 
alties (no  matter  how  great,  in  my  opinion  the  halter  would 
be  mild  enough)  shall  be  inflicted  on  any  person,  however 
august  his  station,  who  should  give  order,  or  vote  for  the  pay- 
ment, or  actually  pay  one  shilling  of  such  money  to  any  other 
purpose  than  that  of  its  appropriation,  and  that  no  order  what- 
ever of  any  superior  in  office  shall  justify  such  payment,  but 
every  order  shall  express  what  funds  it  is  drawn  upon,  and 
what  appropriation  it  is  to  be  charged  to,  or  the  order  shall 
not  be  paid. 

This  kind  of  embezzlement  is  of  so  fatal  a  nature,  that  no 
measures  or  bounds  are  to  be  observed  in  curing  it;  when 
ministers  will  set  forth  the  most  specious  and  necessary  occa- 
sions for  money,  and  induce  the  people  to  pay  it  in  full  tale; 
and  when  they  have  gotten  possession  of  it,  to  neglect  the 
great  objects  for  which  it  was  given,  and  pay  it,  sometimes 
squander  it  away,  for  different  purposes,  oftentimes  for  use- 
less, yea,  hurtful  ones,  yea,  often  even  to  bribe  and  corrupt 
the  very  officers  of  government,  to  betray  their  trust,  and 
contaminate  the  State,  even  in  its  public  offices  —  to  force 
people  to  buy  their  own  destruction,  and  pay  for  it  with  their 
hard  labor,  the  very  sweat  of  their  brow,  is  a  crime  of  so  high  a 
nature,  that  I  know  not  any  gibbet  too  cruel  for  such  offenders. 

6.  I  would  further  propose,  that  the  aforesaid  great  minis- 
ters of  state  shall  compose  a  Council  of  State,  to  whose  number 
Congress  may  add  three  others,  viz.,  one  from  New  England, 
one  from  the  middle  States,  and  one  from  the  southern  States, 
one  of  which  to  be  appointed  President  by  Congress;    to  all 
of  whom  shall  be  committed  the  supreme  executive  authority 
of  the  States  (all  and  singular  of  them  ever  accountable  to 
Congress)    who   shall   superintend   all   the   executive   depart- 
ments, and  appoint  all  executive  officers,  who  shall  ever  be 
accountable  to,  and  removable  for  just  cause  by,  them  or 
Congress,  i.e.,  either  of  them. 

7.  I  propose  further,  that  the  powers  of  Congress,  and  all 
the  other  departments,  acting  under  them,  shall  all  be  re- 
stricted to  such  matters  only  of  general  necessity  and  utility 


652  APPENDIX 

to  all  the  States,  as  cannot  come  within  the  jurisdiction  of 
any  particular  State,  or  to  which  the  authority  of  any  par- 
ticular State  is  not  competent:  so  that  each  particular  State 
shall  enjoy  all  sovereignty  and  supreme  authority  to  all  in- 
tents and  purposes,  excepting  only  those  high  authorities 
and  powers  by  them  delegated  to  Congress,  for  the  purposes 
of  the  general  union. 

There  remains  one  very  important  article  still  to  be  dis- 
cussed, viz.,  what  methods  the  Constitution  shall  point  out, 
to  enforce  the  acts  and  requisitions  of  Congress  through  the 
several  States;  and  how  the  States  which  refuse  or  delay 
obedience  to  such  acts  and  requisitions,  shall  be  treated :  this, 
I  know,  is  a  particular  of  the  greatest  delicacy,  as  well  as  of 
the  utmost  importance;  and  therefore,  I  think,  ought  to  be 
decidedly  settled  by  the  Constitution,  in  our  coolest  hours, 
whilst  no  passions  or  prejudices  exist,  which  may  be  excited 
by  the  great  interests  or  strong  circumstances  of  any  par- 
ticular case  which  may  happen. 

I  know  that  supreme  authorities  are  liable  to  err,  as  well  as 
subordinate  ones.  I  know  that  courts  may  be  in  the  wrong, 
as  well  as  the  people;  such  is  the  imperfect  state  of  human 
nature  in  all  ranks  and  degrees  of  men;  but  we  must  take 
human  nature  as  it  is;  it  cannot  be  mended;  and  we  are 
compelled  both  by  wisdom  and  necessity,  to  adopt  such  methods 
as  promise  the  greatest  attainable  good,  though  perhaps  not 
the  greatest  possible,  and  such  as  are  liable  to  the  fewest  incon- 
veniences, though  not  altogether  free  of  them. 

This  is  a  question  of  such  magnitude,  that  I  think  it  neces- 
sary to  premise  the  great  natural  principles  on  which  its  de- 
cision ought  to  depend.  In  the  present  state  of  human  nature, 
all  human  life  is  a  life  of  chances;  it  is  impossible  to  make 
any  interest  so  certain,  but  there  will  be  a  chance  against  it; 
and  we  are  in  all  cases  obliged  to  adopt  a  chance  against  us, 
in  order  to  bring  ourselves  within  the  benefit  of  a  greater  chance 
in  our  favor ;  and  that  calculation  of  chances  which  is  grounded 
on  the  great  natural  principles  of  truth  and  fitness,  is  of  all 
others  the  most  likely  to  come  out  right. 


APPENDIX  653 

1.  No  laws  of  any  State  whatever,  which  do  not  carry  in 
them  a  force  which  extends  to  their  effectual  and  final  execu- 
tion, can  afford  a  certain  or  sufficient  security  to  the  subject: 
this  is  too  plain  to  need  any  proof. 

2.  Laws  or  ordinances  of  any  kind   (especially  of  august 
bodies  of  high  dignity  and  consequence),  which  fail  of  execu- 
tion, are  much  worse  than  none;    they  weaken  the  govern- 
ment;   expose  it  to  contempt;    destroy  the  confidence  of  all 
men,  natives  and  foreigners,  in  it;   and  expose  both  aggregate 
bodies  and  individuals,  who  have  placed  confidence  in  it,  to 
many  ruinous   disappointments,   which   they  would  have  es- 
caped, had  no  law  or  ordinance  been  made :    therefore, 

3.  To  appoint  a  Congress  with  powers  to  do  all  acts  neces- 
sary for  the  support  and  uses  of  the  union;   and  at  the  same 
time   to   leave   all   the   States    at    liberty  to   obey  them   or 
not  with  impunity,  is,  in  every  view,  the  grossest  absurdity, 
worse  than  a  state  of  nature  without  any  supreme  authority 
at  all,  and  at  best  a  ridiculous  effort  of  childish  nonsense :  and 
of  course, 

4.  Every  State  in  the  Union  is  under  the  highest  obligation 
to  obey  the  supreme  authority  of  the  whole,  and  in  the  highest 
degree  amenable  to  it,  and  subject  to  the  highest  censure  for 
disobedience.      Yet  all  this  notwithstanding,  I  think  the  soul 
that  sins  shall  die,  i.e.,  the  censure  of  the  great  supreme  power, 
ought  to  be  so  directed,  if  possible,  as  to  light  on  those  persons, 
who  have  betrayed  their  country,  and  exposed  it  to  dissolution, 
by  opposing  and  rejecting  that  supreme  authority,  which  is 
the  band  of  our  union,  and  from  whence  proceeds  the  principal 
strength  and  energy  of  our  government. 

I  therefore  propose,  that  every  person  whatever,  whether 
in  public  or  private  character,  who  shall,  by  public  vote  or 
overt  act,  disobey  the  supreme  authority,  shall  be  amenable 
to  Congress,  shall  be  summoned  and  compelled  to  appear 
before  Congress,  and,  on  due  conviction,  suffer  such  fine, 
imprisonment,  or  other  punishment,  as  the  supreme  authority 
shall  judge  requisite. 

It  may  be  objected  here,  that  this  will  make  a  Member  of 


654  APPENDIX 

Assembly  accountable  to  Congress  for  his  vote  in  Assembly; 
I  answer,  it  does  so  in  this  only  case,  viz.,  when  that  vote  is 
to  disobey  the  supreme  authority;  no  Member  of  Assembly 
can  have  right  to  give  such  a  vote,  and  therefore  ought  to  be 
punished  for  so  doing.  When  the  supreme  authority  is  dis- 
obeyed, the  government  must  lose  its  energy  and  effect,  and 
of  course  the  Empire  must  be  shaken  to  its  very  foundation. 

A  government  which  is  but  half  executed,  or  whose  opera- 
tions may  all  be  stopped  by  a  single  vote,  is  the  most  danger- 
ous of  all  institutions.  —  See  the  present  Poland,  and  ancient 
Greece  buried  in  ruins,  in  consequence  of  this  fatal  error  in 
their  policy.  A  government  which  has  not  energy  and  effect, 
can  never  afford  protection  or  security  to  its  subjects,  i.e., 
must  ever  be  ineffectual  to  its  own  ends. 

I  cannot  therefore  admit,  that  the  great  ends  of  our  Union 
should  lie  at  the  mercy  of  a  single  State,  or  that  the  energy 
of  our  government  should  be  checked  by  a  single  disobedience, 
or  that  such  disobedience  should  ever  be  sheltered  from  cen- 
sure and  punishment;  the  consequence  is  too  capital,  too 
fatal  to  be  admitted.  Even  though  I  know  very  well  that  a 
supreme  authority,  with  all  its  dignity  and  importance,  is 
subject  to  passions  like  other  lesser  powers,  that  they  may 
be  and  often  are  heated,  violent,  oppressive,  and  very  tyran- 
nical; yet  I  know  also,  that  perfection  is  not  to  be  hoped  for 
in  this  life,  and  we  must  take  all  institutions  with  their  nat- 
ural defects,  or  reject  them  altogether:  I  will  guard  against 
these  abuses  of  power  as  far  as  possible,  but  I  cannot  give 
up  all  government,  or  destroy  its  necessary  energy,  for  fear 
of  these  abuses. 

But  to  fence  them  out  as  far  as  possible,  and  to  give  the 
States  as  great  a  check  on  the  supreme  authority,  as  can  con- 
sist with  its  necessary  energy  and  effect, 

I  propose  that  any  State  may  petition  Congress  to  repeal 
any  law  or  decision  which  they  have  made,  and  if  more  than 
half  the  States  do  this,  the  law  or  decision  shall  be  repealed, 
let  its  nature  or  importance  be  however  great,  excepting 
only  such  acts  as  create  funds  for  the  public  credit,  which 


APPENDIX  655 

shall  never  be  repealed  till  their  end  is  effected,  or  other  funds 
equally  effectual  are  substituted  in  their  place;  but  Congress 
shall  not  be  obliged  to  repeal  any  of  these  acts,  so  petitioned 
against,  till  they  have  time  to  lay  the  reasons  of  such  acts 
before  such  petitioning  States,  and  to  receive  their  answer; 
because  such  petitions  may  arise  from  sudden  heats,  popular 
prejudices,  or  the  publication  of  matters  false  in  fact,  and  may 
require  time  and  means  of  cool  reflection  and  the  fullest  infor- 
mation, before  the  final  decision  is  made :  but  if  after  all  more 
than  half  of  the  States  persist  in  their  demand  of  a  repeal, 
it  shall  take  place. 

The  reason  is,  the  uneasiness  of  a  majority  of  States  affords 
a  strong  presumption  that  the  act  is  wrong,  for  uneasiness 
arises  much  more  frequently  from  wrong  than  right;  but  if 
the  act  was  good  and  right,  it  would  still  be  better  to  repeal 
and  lose  it,  than  to  force  the  execution  of  it  against  the  opinion 
of  a  major  part  of  the  States;  and  lastly,  if  every  act  of  Congress 
is  subject  to  this  repeal,  Congress  itself  will  have  stronger 
inducement  not  only  to  examine  well  the  several  acts  under 
their  consideration,  but  also  to  communicate  the  reasons  of 
them  to  the  States,  than  they  would  have  if  their  simple  vote 
gave  the  final  stamp  of  irrevocable  authority  to  their  acts. 

Further  I  propose,  that  if  the  execution  of  any  act  or  order 
of  the  supreme  authority  shall  be  opposed  by  force  in  any  of 
the  States  (which  God  forbid)  it  shall  be  lawful  for  Congress 
to  send  into  such  State  a  sufficient  force  to  suppress  it. 

On  the  whole,  I  take  it  that  the  very  existence  and  use  of 
our  union  essentially  depends  on  the  full  energy  and  final 
effect  of  the  laws  made  to  support  it ;  and  therefore  I  sacrifice 
all  other  considerations  to  this  energy  and  effect,  and  if  our 
Union  is  not  worth  this  purchase,  we  must  give  it  up  —  the 
nature  of  the  thing  does  not  admit  of  any  other  alternative. 

I  do  contend  that  our  Union  is  worth  this  purchase  — 
with  it,  every  individual  rests  secure  under  its  protection 
against  foreign  or  domestic  insult  and  oppression  —  without 
it,  we  can  have  no  security  against  the  oppression,  insult, 
and  invasion  of  foreign  powers;  for  no  single  State  is  of 


656  APPENDIX 

importance  enough  to  be  an  object  of  treaty  with  them,  nor,  if 
it  was,  could  it  bear  the  expense  of  such  treaties,  or  support 
any  character  or  respect  in  a  dissevered  state,  but  must  lose 
all  respectability  among  the  nations  abroad. 

We  have  a  very  extensive  trade,  which  cannot  be  carried 
on  with  security  and  advantage,  without  treaties  of  commerce 
and  alliance  with  foreign  nations. 

We  have  an  extensive  western  territory  which  cannot  other- 
wise be  defended  against  the  invasion  of  foreign  nations, 
bordering  on  our  frontiers,  who  will  cover  it  with  their  own 
inhabitants,  and  we  shall  lose  it  forever,  and  our  extent  of 
empire  be  thereby  restrained;  and  what  is  worse,  their  nu- 
merous posterity  will  in  future  time  drive  ours  into  the  sea, 
as  the  Goths  and  Vandals  formerly  conquered  the  Romans 
in  like  circumstances,  unless  we  have  the  force  of  the  union 
to  repel  such  invasions.  We  have,  without  the  union,  no 
security  against  the  inroads  and  wars  of  one  State  upon  an- 
other, by  which  our  wealth  and  strength,  as  well  as  ease  and 
comfort,  will  be  devoured  by  enemies  growing  out  of  our  own 
bowels. 

I  conclude  then,  that  our  union  is  not  only  of  the  most  es- 
sential consequence  to  the  well-being  of  the  States  in  general 
but  to  that  of  every  individual  citizen  of  them,  and  of  course 
ought  to  be  supported,  and  made  as  useful  and  safe  as  possible, 
by  a  Constitution  which  admits  that  full  energy  and  final  effect 
of  government  which  alone  can  secure  its  great  ends  and  uses. 

In  a  dissertation  of  this  sort,  I  would  not  wish  to  descend 
to  minutiae,  yet  there  are  some  small  matters  which  have 
important  consequences,  and  therefore  ought  to  be  noticed. 
It  is  necessary  that  Congress  should  have  all  usual  and  neces- 
sary powers  of  self-preservation  and  order,  e.g.,  to  imprison 
for  contempt,  insult,  or  interruption,  etc.,  and  to  expel  their 
own  members  for  due  causes,  among  which  I  would  rank  that 
of  non-attendance  on  the  house,  or  partial  attendance  without 
such  excuse  as  shall  satisfy  the  house. 

Where  there  is  such  vast  authority  and  trust  devolved 
on  Congress,  and  the  grand  and  most  important  interests 


APPENDIX  657 

of  the  Empire  rest  on  their  decisions,  it  appears  to  me  highly 
unreasonable  that  we  should  suffer  their  august  consultations 
to  be  suspended,  or  their  dignity,  authority,  and  influence 
lessened  by  the  idleness,  neglect,  and  non-attendance  of  its 
members;  for  we  know  that  the  acts  of  a  thin  house  do  not 
usually  carry  with  them  the  same  degree  of  weight  and  respect 
as  those  of  a  full  house. 

Besides  I  think,  when  a  man  is  deputed  a  delegate  in  Con- 
gress, and  has  undertaken  the  business,  the  whole  Empire 
becomes  of  course  possessed  of  a  right  to  his  best  and  constant 
services,  which  if  any  member  refuses  or  neglects,  the  Empire 
is  injured  and  ought  to  resent  the  injury,  at  least  so  far  as  to 
expel  and  send  him  home,  that  so  his  place  may  be  better 
supplied. 

I  have  one  argument  in  favor  of  my  whole  plan,  viz.,  it  is 
so  formed  that  no  men  of  dull  intellects,  or  small  knowledge, 
or  of  habits  too  idle  for  constant  attendance,  or  close  and 
steady  attention,  can  do  the  business  with  any  tolerable  degree 
of  respectability,  nor  can  they  find  either  honor,  profit,  or 
satisfaction  in  being  there,  and  of  course,  I  could  wish  that 
the  choice  of  the  electors  might  never  fall  on  such  a  man,  or 
if  it  should,  that  he  might  have  sense  enough  (of  pain  at  least, 
if  not  of  shame)  to  decline  his  acceptance. 

For  after  all  that  can  be  done,  I  do  not  think  that  a  good 
administration  depends  wholly  on  a  good  Constitution  and 
good  laws,  for  insufficient  or  bad  men  will  always  make  bad 
work,  and  a  bad  administration,  let  the  Constitution  and 
laws  be  ever  so  good;  the  management  of  able,  faithful,  and 
upright  men  alone  can  cause  an  administration  to  brighten, 
and  the  dignity  and  wisdom  of  an  Empire  to  rise  into  respect; 
make  truth  the  line  and  measure  of  public  decision ;  give  weight 
and  authority  to  the  government,  and  security  and  peace  to 
the  subject. 

We  now  hope  that  we  are  on  the  close  of  a  war  of  mighty 

effort  and  great  distress,  against  the  greatest  power  on  earth, 

whetted  into  the  most  keen  resentment  and  savage  fierceness, 

which  can  be  excited  by  wounded  pride,  and  which  usually 

2u 


658  APPENDIX 

rises  higher  between  brother  and  brother  offended,  than  be- 
tween strangers  in  contest.  Twelve  of  the  Thirteen  United 
States  have  felt  the  actual  and  cruel  invasions  of  the  enemy, 
and  eleven  of  our  capitals  have  been  under  their  power,  first 
or  last,  during  the  dreadful  conflict;  but  a  good  Providence, 
our  own  virtue  and  firmness,  and  the  help  of  our  friends,  have 
enabled  us  to  rise  superior  to  all  the  power  of  our  adversaries, 
and  made  them  seek  to  be  at  peace  with  us. 

During  the  extreme  pressures  of  the  war,  indeed  many 
errors  in  our  administration  have  been  committed,  when  we 
could  not  have  experience  and  time  for  reflection,  to  make 
us  wise;  but  these  will  easily  be  excused,  forgiven,  and  for- 
gotten, if  we  can  now,  while  at  leisure,  find  virtue,  wisdom, 
and  foresight  enough  to  correct  them,  and  form  such  estab- 
lishments, as  shall  secure  the  great  ends  of  our  union,  and 
give  dignity,  force,  utility,  and  permanency  to  our  Empire. 

It  is  a  pity  we  should  lose  the  honor  and  blessings  which 
have  cost  us  so  dear,  for  want  of  wisdom  and  firmness,  in 
measures,  which  are  essential  to  our  preservation.  It  is  now 
at  our  option,  either  to  fall  back  into  our  original  atoms,  or 
form  such  an  union,  as  shall  command  the  respect  of  the  world, 
and  give  honor  and  security  to  our  people. 

This  vast  subject  lies  with  mighty  weight  on  my  mind, 
and  I  have  bestowed  on  it  my  utmost  attention,  and  here 
offer  the  public  the  best  thoughts  and  sentiments  I  am  master 
of.  I  have  confined  myself  in  this  dissertation  entirely  to 
the  nature,  reason,  and  truth  of  my  subject,  without  once 
adverting  to  the  reception  it  might  meet  with  from  men  of 
different  prejudices  or  interests.  To  find  the  truth,  not  to 
carry  a  point,  has  been  my  object. 

I  have  not  the  vanity  to  imagine  that  my  sentiments  may 
be  adopted;  I  shall  have  all  the  reward  I  wish  or  expect,  if 
my  dissertation  shall  throw  any  light  on  the  great  subject, 
shall  excite  an  emulation  of  inquiry,  and  animate  some  abler 
genius  to  form  a  plan  of  greater  perfection,  less  objectionable, 
and  more  useful. 


APPENDIX  659 

NOTES  APPENDED  BY  PELATIAH  WEBSTER  TO  THE 
REPUBLICATION  MADE  AT  PHILADELPHIA  IN  1791 

NOTE  1 

Forming  a  plan  of  confederation,  or  a  system  of  general 
government  of  the  United  States,  engrossed  the  attention  of 
Congress  from  the  Declaration  of  Independence,  July  4,  1776, 
till  the  same  was  completed  by  Congress,  July  9,  1778,  and 
recommended  to  the  several  States  for  ratification,  which 
finally  took  place,  March  1,  1781;  from  which  time  the  said 
confederation  was  considered  as  the  grand  constitution  of  the 
general  government,  and  the  whole  administration  was  con- 
formed to  it. 

And  as  it  had  stood  the  test  of  discussion  in  Congress  for 
two  years,  before  they  completed  and  adopted  it,  and  in  all 
the  States  for  three  years  more,  before  it  was  finally  ratified, 
one  would  have  thought  that  it  must  have  been  a  very  finished 
and  perfect  plan  of  government. 

But  on  trial  of  it  in  practice,  it  was  found  to  be  extremely 
weak,  defective,  totally  inefficient,  and  altogether  inadequate 
to  its  great  ends  and  purposes.  For, 

1.  It  blended  the  legislative  and  executive  powers  together 
in  one  body. 

2.  This  body,  viz.,  Congress,  consisted  of  but  one  house, 
without  any  check  upon  their  resolutions. 

3.  The  powers  of  Congress  in  very  few  instances  were  de- 
finitive and  final;    in  the  most  important  articles  of  govern- 
ment they  could  do  no  more  than  recommend  to  the  several 
States;    the  consent  of  every  one  of  which  was  necessary  to 
give  legal  sanction  to  any  act  so  recommended. 

4.  They  could  assess  and  levy  no  taxes. 

5.  They  could  institute  and  execute  no  punishments,  except 
in  the  military  department. 

6.  They  had  no  power  of  deciding  or  controlling  the  con- 
tentions and  disputes  of  different  States  with  each  other. 

7.  They  could  not  regulate  the  general  trade:   or, 


660  APPENDIX 

8.  Even  make  laws  to  secure  either  public  treaties  with 
foreign  States,  or  the  persons  of  public  ambassadors,  or  to 
punish  violations  or  injuries  done  to  either  of  them. 

9.  They  could  institute  no  general  judiciary  powers. 

10.  They  could  regulate  no  public  roads,  canals,  or  inland 
navigation,  etc.,  etc.,  etc. 

And  what  caps  all  the  rest  was,  that  (whilst  under  such  an 
inefficient  political  constitution,  the  only  chance  we  had  of 
any  tolerable  administration  lay  wholly  in  the  prudence  and 
wisdom  of  the  men  who  happened  to  take  the  lead  in  our 
public  councils)  it  was  fatally  provided  by  the  absurd  doctrine 
of  rotation,  that  if  any  Member  of  Congress  by  three  years' 
experience  and  application,  had  qualified  himself  to  manage 
our  public  affairs  with  consistency  and  fitness,  that  he  should 
be  constitutionally  and  absolutely  rendered  incapable  of  serving 
any  longer,  till  by  three  years'  discontinuance,  he  had  pretty  well 
lost  the  cue  or  train  of  the  public  counsels,  and  forgot  the  ideas 
and  plans  which  made  his  service  useful  and  important;  and, 
in  the  mean  time,  his  place  should  be  supplied  by  a  fresh  man, 
who  had  the  whole  matter  to  learn,  and  when  he  had  learned  it, 
was  to  give  place  to  another  fresh  man;  and  so  on  to  the  end 
of  the  chapter. 

The  sensible  mind  of  the  United  States,  by  long  experience 
of  the  fatal  mischiefs  of  anarchy,  or  (which  is  about  the  same 
thing)  of  this  ridiculous,  inefficient  form  of  government,  began 
to  apprehend  that  there  was  something  wrong  in  our  policy, 
which  ought  to  be  redressed  and  mended;  but  nobody  under- 
took to  delineate  the  necessary  amendments. 

I  was  then  pretty  much  at  leisure,  and  was  fully  of  opinion 
(though  the  sentiment  at  that  time  would  not  very  well  bear) 
that  it  would  be  ten  times  easier  to  form  a  new  constitution 
than  to  mend  the  old  one.  I  therefore  sat  myself  down  to 
sketch  out  the  leading  principles  of  that  political  constitution, 
which  I  thought  necessary  to  the  preservation  and  happiness 
of  the  United  States  of  America,  which  are  comprised  in  this 
Dissertation. 

I  hope  the  reader  will  please  to  consider,  that  these  are 


APPENDIX  661 

the  original  thoughts  of  a  private  individual,  dictated  by  the 
nature  of  the  subject  only,  long  before  the  important  theme 
became  the  great  object  of  discussion,  in  the  most  dignified 
and  important  assembly,  which  ever  sat  or  decided  in  America. 

NOTE  2 

At  the  time  when  this  Dissertation  was  written  (Feb.  16, 
1783)  the  defects  and  insufficiency  of  the  Old  Federal  Con- 
stitution were  universally  felt  and  acknowledged;  it  was 
manifest,  not  only  that  the  internal  police,  justice,  security, 
and  peace  of  the  States  could  never  be  preserved  under  it, 
but  the  finances  and  public  credit  would  necessarily  become 
so  embarrassed,  precarious,  and  void  of  support,  that  no 
public  movement,  which  depended  on  the  revenue,  could  be 
managed  with  any  effectual  certainty:  but  though  the  public 
mind  was  under  full  conviction  of  all  these  mischiefs,  and  was 
contemplating  a  remedy,  yet  the  public  ideas  were  not  at  all 
concentrated,  much  less  arranged  into  any  new  system  or 
form  of  government,  which  would  obviate  these  evils.  Under 
these  circumstances,  I  offered  this  Dissertation  to  the  public : 
how  far  the  principles  of  it  were  adopted  or  rejected  in  the 
New  Constitution,  which  was  four  years  afterwards  (Sept. 
17,  1787)  formed  by  the  General  Convention,  and  since  ratified 
by  all  the  States,  is  obvious  to  every  one. 

I  wish  here  to  remark  the  great  particulars  of  my  plan 
which  were  rejected  by  the  Convention. 

1.  My  plan  was  to  keep  the  legislative  and  executive  depart- 
ments entirely  distinct;   the  one  to  consist  of  the  two  houses 
of  Congress,  the  other  to  rest  entirely  in  the  Grand  Council 
of  State. 

2.  I  proposed  to  introduce  a  Chamber  of  Commerce,  to 
consist  of  merchants,  who  should  be  consulted  by  the  legis- 
lature in  all  matters  of  trade  and  revenue,  and  which  should 
have  the  conducting  the  revenue  committed  to  them. 

The  first  of  these  the  Convention  qualified;  the  second 
they  say  nothing  of,  i.e.,  take  no  notice  of  it. 

3.  I  proposed  that  the  great  officers  of  state  should  have 


662  APPENDIX 

the  perusal  of  all  bills,  before  they  were  enacted  into  laws, 
and  should  be  required  to  give  their  opinion  of  them,  as  far 
as  they  affected  the  public  interest  in  their  several  depart- 
ments; which  report  of  them  Congress  should  cause  to  be 
read  in  their  respective  houses,  and  entered  on  their  minutes. 
This  is  passed  over  without  notice. 

4.  I  proposed  that  all  public  officers  appointed  by  the 
executive  authority,  should  be  amenable  both  to  them  and 
to  the  legislative  power,  and  removable  for  just  cause  by 
either  of  them.  This  is  qualified  by  the  Convention. 

And  in  as  much  as  my  sentiments  in  these  respects  were 
either  qualified  or  totally  neglected  by  the  Convention,  I 
suppose  they  were  wrong;  however,  the  whole  matter  is  sub- 
mitted to  the  politicians  of  the  present  age,  and  to  our  pos- 
terity in  future. 

In  sundry  other  things,  the  Convention  have  gone  into 
minutiae,  e.g.,  respecting  elections  of  President,  Senators, 
and  Representatives  in  Congress,  etc.,  which  I  proposed  to 
leave  at  large  to  the  wisdom  and  discretion  of  Congress,  and 
of  the  several  States. 

Great  reasons  may  doubtless  be  assigned  for  their  decision, 
and  perhaps  some  little  ones  for  mine.  Time,  the  great  arbiter 
of  all  human  plans,  may,  after  a  while,  give  his  decision;  but 
neither  the  Convention  nor  myself  will  probably  live  to  feel 
either  the  exultation  or  mortification  of  his  approbation  or 
disapprobation  of  either  of  our  plans. 

But  if  any  of  these  questions  should  in  future  time  become 
objects  of  discussion,  neither  the  vast  dignity  of  the  Conven- 
tion, nor  the  low,  unnoticed  state  of  myself,  will  be  at  all  con- 
sidered in  the  debates;  the  merits  of  the  matter,  and  the 
interests  connected  with  or  arising  out  of  it,  will  alone  dictate 
the  decision. 


INDEX 


Abbots,  status  of,  in  England  (13th 
century),  287. 

Abrogation  of  laws  through  disuse, 
491-492. 

Accountability  of  officials  under  Eng- 
lish law,  589. 

Accounts,  right  of  commons  to  audit, 
308. 

Accursi,  noted  glossator,  168—169, 
516  n. 

Accursi,  Francesco,  151,  516. 

Accusations,  before  and  after  Norman 
Conquest,  275-276 ;  provisions  of 
Great  Charter  concerning,  298. 

Acquisition,  original  or  derivative,  549. 

"Act  of  Government,"  Cromwell's  con- 
stitution called,  380. 

Act  of  Settlement  of  1701,  English, 
403. 

Acts  of  Supremacy,  326,  341,  346,  351. 

Addled  Parliament,  359. 

Adjective  criminal  law,  593-594. 

Adjective  law,  523,  529,  582-585 ;  fate 
of,  in  England,  578. 

Adjective  law  of  nations,  607. 

Administrative  law,  585,  587-591; 
French  theory  of,  589-590. 

Admiralty  law,  English,  adopted  in 
American  colonies,  436. 

Aebutian  law,  567. 

Aediles  in  Republic  of  Rome,  79. 

Aelfred,  King,  228. 

Aethelberht,  laws  of,  207. 

Aetkelings,  212. 

Aethelred  I.,  228. 

Africanus,  Sextus  Caecilius,  107. 

Agnatic  succession  in  ancient  Rome, 
61-62,  508. 

"Agreement  of  the  People,"  377. 

Ahrens,  cited  on  law,  519. 

Alef,  work  by,  on  conflict  of  laws,  621. 

Amercements,  under  provisions  of 
Great  Charter,  298. 

America,  Roman  and  English  systems 
of  law  in,  45—46 ;  Roman  law  trans- 
mitted to,  by  Spain,  164 ;  extension 
of  French  law  to,  173-174;  British 
representative  system  reproduced  in, 
195 ;  English  system  of  law  in,  428  ff ., 
436-438;  Spanish  law  reproduced 
in,  466-469.  See  United  States. 


Amos,  quoted,  23  n.,  28  n.,  65  n.,  520 ; 
on  bases  of  classification  of  con- 
tracts, 562. 

Amparo,  writ  of,  in  Mexico,  485—486. 

Analogv,  law  by,  or  international  law, 
595  ff. 

Animus  dornini,  the,  545-548. 

Annals  of  Northumbria,  206-207. 

Annates,  statute  of,  325. 

Annual  Parliament  Bill,  373. 

Appeal  for  murder,  278. 

Appeals,  Act  of,  325,  348. 

Appropriation  bills  in  England,  annual, 
402. 

Aquilian  law,  565. 

Archbishop,  first  English,  224. 

Archbishoprics,  English,  225,  256-257, 
285. 

Areopagus,  Athenian,  156. 

Argentine  Nation,  474,  478,  479-480. 

Aristotle,  4,  6  n.,  9 ;  the  city-state  the 
basis  of  bis  political  reflections,  15, 
48-49  ;  Constitutions  of,  49 ;  distin- 
guishes public  and  private  law,  524. 

Army,  the  Teutonic,  202-203. 

Army  Act  of  1881,  English,  402. 

Articles  of  Confederation,  American, 
443. 

Assault,  right  of  freedom  from,  532. 

Assize  of  arms,  267,  272. 

Assize  of  Clarendon,  275. 

Assize  of  Northampton,  276. 

Assizes,  introduction  of,  281. 

Attainder  of  Laud  and  Strafford,  372. 

Aucoc,  definition  by,  of  administrative 
law,  588. 

Audientia  Episcopates,  127. 

Augustine,  missionary  to  Britain,  223. 

Austin,  John,  quoted  on  Jurispru- 
dence, xix,  28 ;  definition  of  positive 
law,  9-10,  502 ;  on  sovereignty,  20. 

Austria,  British  representative  system 
in,  195. 

Austria-Hungary,  as  typical  of  a  real 
union,  603. 

Avertisements,  350. 

Azo,  medieval  commentator,  573. 

Bacon,    Lord,    quoted,    31,    519-520; 

James  I.'s  lord  chancellor,  361. 
Baeda,  Ecclesiastical  History  of,  207. 


663 


664 


INDEX 


Ballot  Act  of  1872,  423. 

Bancroft,  George,  on  Pelatiah  Web- 
ster and  his  work,  448. 

Bank  of  England,  incorporation  of, 
407. 

Baronage,  estate  of,  in  England,  286- 
287 ;  and  King  John,  290-291 ;  pro- 
visions of  Great  Charter  affecting, 
292-293 ;  commons  become  more 
aggressive  element  than,  311. 

Bartolus,  Commentarii  of,  169,  619. 

Basilica,  the,  147-148. 

Basil  the  Macedonian,  147. 

Bate's  case,  357. 

Battle,  trial  by,  254-255,  278,  571. 

Becket,  Thomas,  268. 

Beneficiary  system,  the  Frank,  243- 
244. 

Beneficium,  the,  243-244. 

Benevolences,  321 ;  St.  John  case,  360. 

Bentham,  on  term  "municipal  law," 
502-503 ;  on  modern  English  theory 
of  the  state,  504 ;  on  object  of  law, 
520. 

Bernadakis,  Dr.,  discovery  of  papyrus 
leaves  by,  26,  125. 

Bill  of  Rights  of  1689,  401. 

Bishops,  election  of,  in  England,  286; 
status  of,  287. 

Blackstone,  cited,  10;  on  term  "mu- 
nicipal law,"  502;  on  difference  be- 
tween a  crime  and  a  tort,  525-526; 
quoted  on  remedial  law,  574. 

Bloody  circuit,  the,  392. 

Bluntschli,  on  international  law,  596- 
597. 

Bodin,  Jean,  4 ;  system  of  political  sci- 
ence of,  6-7;  sovereignty  as  defined 
by,  20. 

Bolivia,  government  of,  475-476. 

Bologna,  school  of  law  at,  131,  150. 

Bona  fides,  doctrine  of,  compared  with 
that  of  conscience  or  equity,  509— 
510. 

Bonner,  Bishop,  340,  349. 

Borough,  the  Old-English,  302-303. 

Boroughs,  creation  of  new,  to  aid  royal 
power,  354-355. 

Boston  University  Law  School  teach- 
ings, 30. 

Bot  in  Old-English  law,  592. 

Bourges,  law  teaching  at  university  of, 
169-170. 

Bracton,  work  by,  cited,  278,  515-516 ; 
on  remedial  law,  572 ;  classification 
of  writs  by,  573. 

Brazil,  Portuguese  law  in,  469-472 ; 
Philippine  Code  substructure  of  law 
in,  471 ;  German  influence  in  law 


schools   of,    472;     North   American 

influence  in,  472 ;  the  United  States 

of,  480. 

Breviarium  Aland,  138-139,  160. 
Britain,  Teutonic  conquest  of,  204  ff . ; 

early  laws  in,  207  ;  Danish  invasions 

of,  228-229 ;  becomes  England,  229. 

See  England. 
British  Empire,  treaty-making  power 

in,  604. 
British  Guiana,  Roman-Dutch  law  in, 

489-490. 

Britton,  work  by,  266,  277  n. 
Bryce,  James,  tribute  to  work  of,  26; 

definition  of  law  by,  29-30 ;  quoted 

on  present  German  code,  181,  182  n. 
Buckingham,  first  Duke  of,  362-364. 
Bulgaria,  Roman  private  law  in,  187. 
Bulmerincq,  on  international  law,  599. 
Burke,  on  equity  and  utility,  86  n. 

Cabal,  the,  387,  407. 

Cabinet  council  of  Charles  I.,  368,  407. 

Cabinet  system,  British,  407-425.  See 
Council  and  Privy  council. 

Cairns,  on  international  law,  600. 

Canada,  English  law  in,  46 ;  compro- 
mise as  to  legal  system  in,  173-174. 

Canon  law,  Christianity  and,  125  ff . ; 
defined,  126-127;  Gratian  founds 
the  science  of,  130-131. 

Canterbury,  as  an  ecclesiastical  divi- 
sion, 225,  285 ;  convocation  of,  257. 

Capetian  dynasty,  19-20. 

Capito,  school  of,  103. 

Capitularies  of  Charles  the  Great,  135. 

Capitulary  of  Kiersi,  244. 

Caput,  in  Roman  law,  579. 

Caracalla,  extension  of  Roman  citizen- 
ship by,  16,  98,  158-159,  615-616. 

Cartwright,  John,  419. 

Carucage,  272,  289  n. 

Casas,  Bartolom6  de  las,  164  n. 

Case  law,  English,  contrasted  with 
Roman  treatises,  110-111. 

Case  of  Commendams,  360-361. 

Catholic  Emancipation  Act  (1829) ,  405. 

Catholics,  and  Queen  Elizabeth,  348- 
349 ;  persecution  of,  under  James, 
357 ;  slow  growth  of  toleration  to- 
ward and  emancipation  of,  401  -105. 

Cato,  M.  Porcius,  100. 

Cecil,  William,  345  ff .,  352. 

Celsus,  Roman  jurist,  105. 

Census  in  ancient  Rome,  74. 

Central  America,  Roman  law  in,  45; 
constitutions  of  states  of,  474. 

Ceorl,  the,  211-212. 

Ceylon,  Roman-Dutch  law  in,  490. 


INDEX 


665 


Chancellor,  English,  251,  274;  under 
provisions  of  Great  Charter,  295; 
common-law  and  equitable  jurisdic- 
tion of,  295-296,  508-509. 

Chantry  lands  in  England,  335. 

Charles  I.,  accession  of,  362 ;  events  of 
reign,  363-378. 

Charles  II.,  reign  of,  384-390. 

Charter  colonies,  North  American,  432. 

Charters,  English,  origin  of  struggle 
for,  283  ff . ;  struggle  for,  began  with 
Richard  I.,  288-289;  confirmation 
of,  294,  301,  306. 

Checks  and  balances,  doctrine  of,  426- 
427. 

Children  in  ancient  Rome,  59. 

Chili,  government  of,  475. 

Chinese,  law  system  of,  42-43. 

Christianity,  and  canon  law,  125  ff . ; 
in  Teutonic  Britain,  223. 

Church,  English,  organization  of,  by 
Theodore  of  Tarsus,  224-226 ;  divi- 
sions and  courts  in,  225,  285 ; 
remodeling  under  William  the  Con- 
queror, 255;  status  of  prelates  of, 
286-287  ;  provisions  of  Great  Charter 
affecting,  292 ;  a  department  of 
state  under  Henry  VIII.,  327-328. 

Church  councils,  226,  256,  285. 

Cicero,  definition  of  jua  gentium  by,  35  ; 
conception  of  a  philosophy  of  law, 
37-40. 

Cities,  rights  of  Roman  free  and  tribu- 
tary, 152-153  ;  courts  of  provincial, 
155 ;  passing  of  Romano-British, 
210-211. 

Citizenship,  extension  of  Roman,  16, 
98,  158-159,  615-616;  new  princi- 
ple of,  in  American  Constitution, 
458-460  ;  of  children  born  on  Ameri- 
can soil  but  of  foreign  parents,  463. 

City-state,  the  Hellenic,  15 ;  the  Ital- 
ian, 16 ;  origin  and  growth  of  Rome 
as  a,  16-17,  53 ;  the  customary  law 
in  Greek,  49. 

Civil  List,  British,  origin  of,  401-402. 

Civil  War,  English,  375  ff. 

Civitos,  the,  197-198 ;  reappearance  as 
primitive  British  kingdom,  204,  209- 
210. 

Clarendon,  Constitutions  of,  268-269. 

Clementinoe,  132. 

Clergy,  English,  estate  of,  284-285, 304. 

Code  "Napoleon,  170-173. 

Code  of  Gregory  IX.,  132. 

Code  of  Hammurabi,  25. 

Code  penal,  French,  593. 

Codex  Gregorianus,  121,  139. 

Codex  Hermogenianus,  121,  139. 


Codification,  ante-Justinian,  121  ff . ;  a 
suggested  English,  122 ;  in  Rome 
the  decadence  of  legal  science  a 
prelude  to,  123 ;  Romano-Barbarian, 
137;  Justinian's,  see  Justinian;  in 
Spain,  163-164 ;  tendency  toward, 
in  Germany,  178;  earliest  British, 
207 ;  Portuguese  claim  to  first,  in 
modern  Europe,  469-470;  at  Rome 
and  in  England,  516-517  ;  in  United 
States,  517 ;  of  criminal  law,  593. 

Cognation,  rule  of,  in  ancient  Rome,  62. 

Coke,  Chief  Justice,  358-361,  366. 

Coleridge,  on  international  law,  600. 

Collectio  Dionysiana,  128. 

Collectio  Isidoriana,  129. 

Collectio  Pseudo- Isidoriana,  129. 

Colombia,  government  of,  475. 

Colonies,  British,  in  North  America, 
428  ff. ;  royal,  431;  charter,  432; 
proprietary,  432 ;  transformed  into 
sovereign  states,  434 ;  characteris- 
tics of  Spanish,  472-473. 

Comitatus,  the  Teutonic,  203,  216  ff. 

Comitia  curiata,  56,  74-75,  116. 

Comity,  618;  defined,  626-627. 

Commendation,  practice  of,  243. 

Commercial  law,  ancient  Greek,  49-50. 

Common-law  jurisdiction  of  English 
chancellor,  295-296. 

Common  pleas,  English  court  of,  295. 

Commons,  estate  of,  in  England,  284, 
288  ;  provisions  of  Great  Charter  af- 
fecting, 293  ff. ;  participation  of,  in 
taxation,  305  ff. ;  participation  in 
legislation,  306-307;  full  right  of 
deliberation,  308 ;  become  more  ag- 
gressive element  than  baronage,  311. 

Commonwealth,  the  English,  379-384. 

Communion,  Order  of,  335-336. 

Community  jurata,  280. 

Competition,  right  of,  542 ;  unfair,  543. 

Compurgation,  trial  by,  276. 

Comte,  Auguste,  14. 

Confirmatio  Cartarum,  294,  301,  306. 

Conflict  of  laws,  international  rules  to 
prevent,  611-628;  literature  con- 
cerning, 619-622. 

Conflicts  of  jurisdiction  in  France,  589. 

Conkling,  Roscoe,  quoted,  460. 

Connecticut,  charter  of,  439. 

Connecticut  plan,  the,  445. 

Conring,  Herman,  treatise  of,  176. 

Consistorium,  in  imperial  Rome,  117. 

Consolato  del  Mare,  162,  191. 

Constantinople  a  nucleus  of  the  impe- 
rial law,  147,  187. 

Constitutio  Criminalis  Carolina,  593. 

Constitution,  Law  of  the,  399. 


666 


INDEX 


Constitution  Cordi  nobis,  141. 

Constitution  of  Old-English  borough, 
302-303. 

Constitution  of  United  States,  443 ;  ba- 
sis of  plans  submitted  to  convention 
of  1787,  445;  Pelatiah  Webster's 
"Dissertation,"  446  ff. ;  new  princi- 
ple of  citizenship  originated  by,  458- 
459 ;  Fourteenth  Amendment  to, 
459-460;  defect  in,  relative  to  the 
executive  and  international  de- 
mands, 605. 

Constitutional  law,  585,  586-587. 

Constitutional  limitations  in  America, 
438  ff.,  586. 

Constitutions,  American,  and  "The 
Agreement  of  the  People,"  377; 
South  and  Central  American,  474— 
476,  481  ff. 

Consuls  in  Republic  of  Rome,  76. 

Contract,  law  of,  559;  defined,  560; 
and  obligation,  560-561. 

Contracts,  classification  of,  562-563. 

Conventicle  Acts,  387. 

Convention  Parliament,  382-384;  sec- 
ond, 396-397. 

Corporation,  Roman  conception  of  a, 
580. 

Corpus  Juris  Canonici,  132. 

Corpus  Juris  Civilis,  anticipated  by 
German  kings,  137-140 ;  history  of, 
140  ff . ;  publication  of,  145 ;  ignored 
by  clergy  of  medieval  Europe,  150 ; 
work  of  the  glossators,  168-169. 

Costa  Rica,  government  of,  474. 

Cottenham,  Lord,  quoted,  509. 

Coulanges,  tribute  to  work  of,  26. 

Council,  of  principes,  Teutonic,  201 ; 
development  of  the  national,  in  Brit- 
ain (witenagemot),  220-221,  235 ;  the 
Great  Council  of  the  Empire,  235- 
236 ;  the  national,  continued  under 
William  the  Conqueror,  249-250 ;  an 
inner,  known  as  curia  regis,  251  (see 
Curia  regis)  ;  of  the  king  (king  in 
council),  274 ;  provisions  of  Great 
Charter  concerning,  294-295 ;  to  be 
controlled  by  Parliament,  311 ;  sworn 
and  paid  members  of,  312  (see  Privy 
council) ;  expansion  of  judicial  pow- 
ers of,  314  ff. ;  original  jurisdiction 
of,  315 ;  constitution  of,  in  days  of 
Elizabeth,  352-353 ;  system  of  gov- 
ernment by,  conflicts  with  parlia- 
mentary system,  356  ff . ;  under  the 
Stuarts,  355-356, 363  ff . ;  death  strug- 
gle between  Parliament  and,  370  ff . ; 
growth  of  modern  ministerial  system 
out  of,  407-411. 


Council  of  the  Indies,  466-467. 

Councils,  English  church,  226,  256,  285. 

County,  the,  in  southern  colonies  and 
states  of  America,  430. 

Court  of  Claims,  United  States,  528. 

Court  of  High  Commission.  See  High 
Commission. 

Court  of  Session,  Scottish,  46,  495-496. 

Cranmer,  Thomas,  332  ff. 

Crime,  difference  between  a  tort  and  a, 
525-526. 

Criminal  law,  591-594. 

Cromwell,  Oliver,  368  ff. ;  Protector- 
ship of,  379-380. 

Cromwell,  Richard,  380. 

Cromwell,  Thomas,  324  ff . 

Crusades,  influence  on  trade,  189. 

Cuba,  Roman  law  in,  45,  165. 

Cuiacius,  Jacobus,  170. 

Curiae,  Roman,  53—54. 

Curia  regis,  under  William  the  Con- 
queror, 251-252 ;  becomes  supreme 
court  of  justice  in  England,  260, 
263-264;  development  of  work  of, 
273-274;  origin  of  king's  bench  in, 
274 ;  encroachments  of,  upon  popu- 
lar and  franchise  courts,  283 ;  origin 
of  struggle  for  the  charters,  283-284. 

Custom  as  the  oldest  form  of  law,  505 ; 
state  recognition  of  a,  518. 

Customary  law  in  France,  168. 

Custom  of  Paris,  168,  173. 

Customs  of  the  Goths,  in  Spain,  160. 

Danby,  impeachment  of,  387-388. 

Danegeld,  the,  236,  271. 

Danelagh,  the,  228-229. 

D'Anesty,  Richard,  plea  of,  295  n. 

Danish  invasions  of  Britain,  228-229. 

Dareste,  Rodolphe,  26. 

Declaration  of  Indulgence  of  James  II., 

394. 

Declaration  of  Right  of  1689,  399. 
Decretales  extravagantes,  131. 
Decretum  Gratiani,  130-131. 
Defamation,  English  law  of,  534. 
De  haeretico  comburendo,  statute,  342, 

344. 
Department    of    Commerce,    Pelatiah 

Webster's  suggestion,  457. 
Deposition,  parliamentary  right  of,  309 ; 

Pius  V.'s  bull  of,  and  responses  to, 

349. 
Detentio    and    possessio  distinguished, 

544-545. 

Dialogus  de  Scaccario,  274-275. 
Dicey,  quoted  on  freedom  of  discussion, 

533 ;  concerning  administrative  law, 

588 ;  on  conflict  of  laws,  622. 


INDEX 


667 


Dictator,  office  of,  in  Rome,  77. 

Digest  of  Justinian.  See  Corpus  Juris 
Civilis. 

Dioceses  in  England,  225,  285. 

Dispensing  power,  English,  392-393. 

"Dissertation  on  the  Political  Union 
and  Constitution,"  etc.,  Webster's, 
xvii-xviii,  446  ff . ;  text  of,  629-662. 

Dolus  malus  in  Roman  law,  550. 

Domesday  Survey,  257-258. 

Dom  Pedro,  469. 

Donellus,  Hugo,  170. 

Dred  Scott  case,  459. 

"  Due  process  of  law  "  doctrine,  365, 
461-462. 

Dunning 's  Resolution,  417  n. 

Dushan,  Stephen,  187. 

Duties,  legal,  521-522,  530  ff . ;  per- 
sons the  subjects  of,  578-579. 

Eadgar  the  Peaceful,  229-230. 

Eadward  the  Confessor,  laws  of,  207. 

Eadward  the  Elder,  207,  225. 

Eadwine,  bretwalda  of  Northumbria, 
226. 

Ealdorman,  title  of,  214;  becomes 
king,  215. 

Ecclesiastical  courts  in  England,  246, 
255-257,  285.  See  High  Commis- 
sion, Court  of. 

Ecclesiastical  law,  attempt  to  codify, 
in  England  under  Warwick,  337. 

Ecgberht,  King,  227-228. 

Ecuador,  government  of,  475  ff. 

Edict,  the  perpetual,  105-106,  508. 

Edict,  the  praetorian,  91-92;  climax 
of,  93. 

Edict  of  Caracalla,  16  n.,  158-159, 
615-616. 

Edictum  Theodorici,  137. 

Edward  III.,  regency  for,  330. 

Eldon,  Lord,  chancellor,  509. 

Eliot,  Sir  John,  364,  366,  368. 

Elizabeth,  Queen,  reign  of,  345-355. 

Employer  and  employee,  relative 
rights  of,  538-542. 

England,  maritime  laws  of,  191-192 ; 
representative  system  in,  and  its 
world  expansion,  193-195;  impor- 
tant effect  of  Teutonic  invasions  on, 
197  ff . ;  Britain  becomes,  229 ;  Nor- 
man conquest  of,  247.  See  Britain. 

English  Chronicle,  the,  206. 

English  public  law,  contrasted  with 
Roman  private  law,  xv,  45—46,  193, 
465 ;  strongholds  of,  46 ;  in  America, 
436-438 ;  development  and  expan- 
sion of,  465 ;  basis  of  constitutional 
system  in  Latin  America,  487. 


Solas,  212. 

Eorl,  the,  211. 

Episcopal  courts  in  Christian  Rome,  127. 

Equitable  jurisdiction  of  English  chan- 
cellor, 296,  508-509. 

Equity,  86,  509 ;  in  Roman  Republic, 
86-87 ;  end  of  growth  of  Roman,  113. 

Estate  system,  English,  284  ff. 

Ethic,  Holland's  term,  12. 

Exchequer,  origin  of  court  of,  252; 
office  of  chancellor  of,  252,  274,  295, 
508-509 ;  in  time  of  Henry  II.,  274- 
275. 

Exclusion  Bill,  389. 

Ex  officio  oath,  351-352. 

False  Decretals,  129,  136. 

False  imprisonment,  532. 

Family,  the,  in  ancient  Rome,  57  ff . ; 
the  plebeian,  72 ;  the  Teutonic,  199. 

Family  rights  incident  to  marriage, 
552  ff. 

Fas,  the,  in  ancient  Roman  system,  65. 

Federal  unions,  604. 

Feudalism,  the  classic,  137 ;  develop- 
ment of  Teutonic,  203  ;  in  Teutonic 
Britain,  218-219,  233-234;  Frank- 
ish,  243  ff. ;  effect  of,  to  reduce 
royal  power,  245;  Henry  II. 's  meas- 
ures against,  267  ff. ;  Great  Charter 
and,  292-293 ;  Holy  Roman  Empire 
based  on  theory  of,  323,  608. 

Feudalization,  process  of,  19. 

Fictions,  legal,  86,  87. 

Fifty  Decisions,  the,  140,  144. 

Fiore,  works  by,  622. 

Five  Knights'  case,  365,  388. 

Five  members,  attempt  on  the,  374— 
375. 

Five-mile  Act  of  1665,  387. 

Flambard,  Ranulf,  259. 

Foelix,  quoted,  611 ;  work  by,  622. 

Folk  moot,  the,  221 ;  becomes  shire 
moot,  231 ;  converted  into  the 
witenagemot,  235. 

Foote,  work  by,  622. 

Forged  capitularies,  the,  136. 

Forty-two  Articles,  337. 

France,  Roman  private  law  in,  45, 
166  ff. ;  written  law  and  customary 
law  in,  167-168 ;  the  Code  Napoleon, 
170-173;  British  political  model 
followed  by,  195. 

Franchise,  extension  of  Roman,  16, 
98,  158-159,  615-616. 

Fraud,  definition  of,  in  English  and 
American  law,  550—551. 

Freedom  of  discussion,  right  to,  533. 

Freedom  of  speech,  533. 


668 


INDEX 


Freeman,  Edward  A.,  tribute  to  work 
of,  26. 

Freire,  Dr.  Paschoal,  470. 

Freitas,  Teixeira  de,  471. 

French  language  in  English  law  litera- 
ture, 266. 

French  Revolution  and  historical 
school,  14. 

French  School  of  law,  170. 

Fuero  Juzgo,  160-161. 

Fuero  Real,  162. 

Gail,  Andreas,  492. 

(Jains,  Roman  jurist,  107-109 ;  dis- 
covery of  lost  text  of,  xi,  108—109 ; 
definition  of  jus  gentium  by,  35; 
Institutes  of,  146,  566. 

Gardiner,  Bishop,  340,  344. 

Gas,  the,  208  ff. 

Gaul,  impression  of  Teutons  upon,  134 ; 
Roman  private  law  survives  in, 
166  ff. 

ytvot,  the,  vii,  14,  18. 

Gens,  the  Roman,  vii,  14,  18,  52. 

Gentilis,  5,  185. 

George  I.,  accession  of,  413. 

George  III.,  reign  of,  416  ff. 

German  law,  134  ff. ;  contact  with 
Roman  law  and  effects,  135-136. 

Germany,  Roman  private  law  in, 
175  ff. ;  common  law  of,  177 ;  tend- 
ency in,  toward  codification,  178; 
division  of,  into  territory  of  codified 
private  law  and  of  uncodified  Law 
of  the  Pandects,  179;  general  code 
for  the  Empire,  179-182;  British 
political  model  followed  by,  195. 

Gesammtstaat,  a,  603. 

Gesith,  the,  217. 

Gibbon,  Edward,  cited,  16,  87 ;  quoted, 
106. 

Gladstone,  on  American  Constitution, 
xvii,  444. 

Glanvill,  Ranulf,  work  by,  275, 
515. 

Glossators,  school  of,  140,  150-151, 
168-169. 

Godden  v.  Hales,  case  of,  393. 

Godwine,  Earl,  240. 

Gordon  riots,  419. 

Governors,  Roman  provincial,  154 ; 
criminal  jurisdiction  of,  155-156. 

Grand  Remonstrance,  374,  376. 

Gratian,  founder  of  science  of  canon 
law,  130-131. 

Great  Assize,  281. 

Great  Charter,  270,  271  n. ;  signing  of, 
291 ;  analysis  of,  291-298. 

Great  Contract,  the,  358-359. 


Greece,  city-states  of  ancient,  15; 
legal  system  of,  188. 

Greeks,  failure  of,  to  produce  a  phi- 
losophy of  law,  48 ;  customary  law 
among,  49 ;  commercial  usages,  49— 
50  ;  military  tenures,  50 ;  definitions 
of  positive  law,  51. 

Gregory  IX.,  code  of,  132 ;  tribute  to 
work  of,  132. 

Grotius,  Hugo,  182-187,  492-493; 
system  of  international  law,  599, 
609-610. 

Guardians,  rights  and  duties  of,  558. 

Guatemala,  government  of,  474,  476. 

Guidon  de  la  Mer,  191. 

Gunpowder  Plot,  357. 

Habeas  Corpus  Act  of  Charles  II.,  388. 
Habeas  corpus  in  Mexico,  485—486. 
Hague  peace  conferences,  610. 
Halbritter,  De  Statutis,  619. 
Halifax,    Lord,    originates   scheme   of 

national  debt,  406-407. 
Hamilton,.  Alexander,  xvii,  445. 
Hammurabi,  Code  of,  25. 
Hampden,  John,  368,  369,  370,  371. 
Hanover,   House  of,  source  of  title  to 

British  crown,  404 ;  accession  of,  413. 
Hanseatic  League,  189. 
Hardwicke,  Lord,  quoted,  509. 
Hautefeuille,  on  international  law,  596. 
Henry,  J.,  Treatise  by,  620. 
Henry  I.  of  England,  259  ff. ;  charter 

of,  259-260. 
Henry  II.,  261-262 ;  work  of  reform  of, 

266  ff. 
Henry    III.,    regency    for,    299,    330; 

golden  age  of  forms,  572,  575. 
Henry  VII.,  reign  of,  315,  318  ff. 
Henry  VIII.,  reign  of,  322  ff. ;  repeal 

of  acts  of,  333-336,  340-341. 
Heptarchic  kingdoms  in  Britain,  220- 

222  ;  struggle  among,  for  supremacy, 

226-227 ;  Wessex  becomes  supreme, 

227-228 ;     national    assemblies    of, 

235. 
Heresy,  acts  relating  to,  327-328,  333- 

334,  351-352. 
Heretoga,  title  of,  214. 
Herschell,  Lord,  on  fraud,  551. 
Hertius,  on  conflict  of  laws,  621. 
Hidage,  271,  272. 
High  Commission,  Court  of,  347,  351 ; 

abolished,    373 ;     reestablished    by 

James  II.,  394. 
Highways,  right  to  use,  536. 
Hindu  law,  43. 
Hispana,  129. 
Hlaford,  the,  217. 


INDEX 


669 


Hobbcs,  4 ;  work  and  theories  of,  7-9 ; 
Social  Contract  theory,  7,  398-399; 
sovereignty  as  denned  by,  20 ;  defi- 
nition of  positive  law,  501 ;  on  object 
of  law,  520. 

Holland,  Roman  private  law  in, 
182  ff. ;  Roman-Dutch  law  of,  490- 
492. 

Holland,  T.  E.,  work  of,  11-12;  on 
modern  conception  of  sovereignty, 
22 ;  on  the  jus  naturale,  184 ;  on 
object  of  law,  520—521 ;  on  public 
as  distinguished  from  private  law, 
524. 

Holy  Roman  Empire,  323  ff . ;  as  an 
international  power,  608-610. 

Honduras,  government  of,  474. 

House  of  Commons,  287-288 ;  sover- 
eignty now  vested  in,  414,  425 ; 
membership  not  increased  under 
reform  acts  from  1832  to  1896,  424 ; 
reproduced  in  American  houses  of 
representatives,  435. 

House  of  Lords,  286-287;  abolished 
by  act  of  1649,  378;  increase  in 
numbers  of,  up  to  1897,  424 ;  a  revis- 
ing and  suspending  chamber,  424- 
425 ;  reproduced  in  American  state 
senates,  435. 

Howe,  William  W.,  50  n. ;  quoted, 
468  n. ;  cited,  560,  569,  582  ff . 

Huber,  De  conflictu  legum,  611-612, 
620-621. 

Hundred,  division  of  a  state  called, 
198,  200. 

Hundred  court,  200;  under  William 
the  Conqueror,  253-254. 

Husband,  position  of,  under  ancient 
usage  and  modern  law,  552—557. 

Ihering,  R.  von,  work  of,  25;  cited, 
60,  62,  65,  69  ff.,  546-547;  quoted 
on  Savigny,  178. 

Immunities,  growth  of,  in  Britain,  238- 
239,  244. 

Immunity  from  fraud,  right  of,  550  ff . 

Impeachment,  parliamentary,  305, 
308-309;  revival  of,  in  1621,  361; 
cases  since  1621,  361  n. ;  of  Bucking- 
ham, 364 ;  of  Straff ord,  372 ;  of  the 
five  members,  374 ;  of  Danby,  387- 
388. 

Inalienable  rights,  532. 

Income  tax,  British,  406-407. 

Incorporate  union,  an,  603. 

India,  law  systems  of,  43 ;  English  law 
in,  44—45 ;  penal  code  for,  593. 

Indies,  Council  of  the,  164. 

Innate  rights,  532. 


Innocent    III.,    King    John's   contest 

with,  289-290. 
Inquest  of  proof,  279-280. 
Institutes  of  Justinian,  145-147. 
Instrument  of  Government,  the,  380. 
Insults,  Roman  classification  of,  533- 

534. 

Interest,  in  ancient  Rome,  84. 
International  law,  earliest  sources  of, 

in  prize  courts,   189 ;    denned,  595— 

598;    normal   and   abnormal,   607- 

608. 

Irnerius,  131,  150,  151. 
Italy,     city-states     of     ancient,     16; 

impression  made  by  Teutons  upon, 

134 ;  law  teaching  in  medieval,  150 ; 

British  political  model  followed  by, 

195. 

James  I.,  reign  of,  355-362. 

James  II.,  accession  of,  391 ;  deposition 
of,  397. 

James  III.,  395. 

Japan,  legal  system  of,  188—189; 
British  political  model  followed  by, 
195. 

Jeffreys,  Lord  Chancellor,  394. 

John,  King,  and  the  struggle  for  the 
charter,  289-291. 

Joint  state,  a,  603. 

Judex,  office  of,  90. 

Judge-made  law  in  England  and 
United  States,  440-441,  511-513. 

Judicature  Act  of  1873,  English,  577. 

Julian,  epitome  of  Justinian's  works 
by,  148. 

Julianas,  Salvius,  Roman  jurist,  105- 
106. 

Junto,  the,  407-408,  412. 

Jurata,  the  community,  280. 

Jurisconsults,  90,  102  ff. 

Jurisprudence,  analytical  and  historical 
methods  of,  3-27 ;  defined  as  the 
science  of  positive  law,  28,  37 ;  sub- 
ject-matter of,  28-30 ;  processes  of, 
30-33 ;  an  analytical  and  applied 
science,  32 ;  classical,  105. 

Jurors,  at  first  witnesses,  finally 
judges  of  facts  detailed  by  others, 
277. 

Jury,  disuse  of  the,  in  civil  cases,  47 ; 
origin  of  system,  238 ;  the  trial,  264 ; 
grand  juries  of  Richard  I.,  276 ; 
petty  jury  supersedes  trial  by  ordeal 
in  criminal  cases,  277 ;  evolution  of 
the  modern  trial,  277-278;  origin 
of  trials  by,  in  civil  cases,  278-283 ; 
trials  by,  not  guaranteed  by  Great 
Charter,  297;  the  English  system 


670 


INDEX 


followed  in  American  colonies,  436 ; 
trial  by,  in  South  and  Central  Amer- 
ican states,  476-477 ;  in  Mexico,  486. 

Jury  assessment,  273. 

Jus,  denned,  65-66;  contrasted  with 
lex,  120. 

Jus  Aelianum,  100. 

Jus  aequum,  97. 

Jus  civile,  praetor  urbanus  and,  87 ; 
distinction  between  jus  gentium  and, 
93;  Scaevola's  work  on,  100-101. 

Jus  commercii,  95. 

Jus  gentium,  xx,  xxi,  33  ff. ;  necessity 
for  a  modern,  41 ;  relation  to,  of 
praetorian  edict,  91-92 ;  praetor 
peregrinus  and,  94;  as  a  market 
law,  95  ;  fusion  of  jus  naturale  and, 
95-96,  183-184 ;  effect  on  jus  civile, 
96-97,  157-158. 

Jus  honorarium,  92. 

Jus  in  rem  and  jus  in  personam,  531, 
559. 

Jus  naturale,  95-96,  183-184;  defini- 
tion by  Grotius,  185-186. 

Jus  novum,  120-121. 

Jus  Quiritium,  66-67. 

Jus  respondendi,  suspension  of,  112- 
113. 

Jus  vetus,  119-120. 

Justin,  Constitution  of,  511. 

Justinian,  Digest  of,  48  (see  Corpus 
Juris  Civilis) ;  Novels  of,  141-142 ; 
Institutes  of,  145-147. 

Justitiarii  Itinerantes,  252. 

Kant,  definition  of  law,  519;  on  per- 
petual peace,  610. 

Kemble,  J.  M.,  historical  work  of, 
xii-xiii,  204  n. 

Kent,  Chancellor,  quoted,  628. 

Kentucky  act  of  1807,  438. 

King,  the  Roman,  54-55 ;  the  Teu- 
tonic, 133,  198;  British,  under 
Teutons,  214-216,  232-233 ;  Eadgar 
the  Peaceful  the  first  national,  in 
England,  229 ;  growth  of  power  and 
scope  of,  in  Britain,  233-235 ;  right 
of  election  and  of  deposition  held  by 
witan,  236 ;  power  of,  reduced  by 
feudal  system,  245;  William  the 
Conqueror  a  national,  248 ;  suprem- 
acy of  English,  from  accession  of 
Henry  VII.  to  Revolution  of  1640, 
315  ff . ;  legal  character  and  powers 
of  British,  409-411. 

"King  can  do  no  wrong"  doctrine, 
299,  309,  410-411. 

Kingdoms,  primitive  British,  209  ;  the 
heptarchic,  220-222;  of  Northern, 


Central,  and  Southern  Britain,  222, 

226-228,  235. 
King    in    council,    274,    310;  judicial 

supremacy   of,    295 ;    expansion   of 

judicial  powers  of,  314 ;  Edward  IV. 

converts  it  into  engine  of  tyranny, 

314-315.     See    Council    and    Curia 

regis. 

King's  bench,  beginning  of,  274. 
King's  friends,  the,  416-417. 
King's  writ,  process  of,  571. 
Knight's  fees,  267,  272,  294. 
Krause,  on  object  of  law,  519. 

Labeo,  school  of,  103 ;  works  of,  103- 
104. 

Laets,  212. 

Land  tax,  English,  272,  406. 

Lanfranc,  246,  256,  258. 

Language,  English,  at  time  of  Con- 
quest and  later,  265-266. 

La  Novisima  Recopilacidn,  163. 

La  Nueva  Recopilacidn,  163. 

Laud,  Archbishop,  363;  made  prime 
minister,  369 ;  attainder  and  exe- 
cution of,  372. 

Law,  Jurisprudence  the  science  of 
positive,  28 ;  Savigny's  definition  of, 
29;  Bryce's  definition  of,  29-30;  a 
living  and  growing  organism,  30 ; 
Chinese,  Muhammedan,  and  Hindu 
systems  of,  42—43 ;  English  and 
Roman  systems  of,  45-47 ;  Teu- 
tonic conception  of,  133  ;  state  law, 
defined,  501-502  ff.  See  Private 
law  and  Public  law. 

Law  literature,  Roman,  102-113. 

Law  of  Citations  of  Valentinian  III., 
122. 

Law  of  domicile,  status  of  person 
dependent  on,  613-614;  general 
rules  as  to,  614. 

Law  of  the  Constitution,  399. 

Law  teaching,  145-147. 

Lawmaking,  methods  of,  in  Rome, 
115  ff. 

Leagues,  Hanseatic,  Swabian,  and 
Rhine,  189. 

Leeuwen,  Simon  van,  463. 

Leges  Cornelia,  101. 

Leges  Henrici  Primi,  254. 

Leges  Juliae,  567. 

Leges  regiae,  Roman,  65. 

Leges  Valeriae  Horatiae,  88. 

Legis  actiones,  97,  566  ff. 

Leo  the  Philosopher,  147. 

Lex  Aebutia,  567. 

Lex  Calpurnia,  592. 

Lexfori,  and  conflict  of  laws,  612,  614. 


INDEX 


671 


Lex  Romano  Burgundionum,  138. 

Lex  Romano  Visigothorum,  138. 

Lex  Salica,  133,  160,  616. 

Leyden,  law  school  at,  492. 

Leyes  de  Toro,  163. 

Libel,  533. 

Liber  Memorandorum,  190  n. 

Liber  Sextus,  132. 

Licensing  Act  of  1662,  388. 

Life,  the  right  to,  532. 

Limitations,  Statute  of,  329. 

Linden,  Joannes  van  der,  493. 

Livingstone  penal  code,  593. 

Locke,  quoted  on  law,  520. 

Lombardy,  principle  of  personal  law  in, 

149. 

Long  Parliament,  371-375,  381-382. 
Lord,  derivation  of  title,  217.* 
Louisiana,  Roman  law  in,  45,  164—165 ; 

legal  history  of,  174. 
Louisiana  code,  xv,  466. 

Machiavelli,  4,  5-6. 

Madison,  James,  work  in  connection 
with  Constitution,  xvii,  445  ;  on  Pel- 
atiah  Webster,  448;  on  division  of 
functions  of  government,  587. 

Magna  Carta.     See  Great  Charter. 

Magoon,  Charles  E.,  166. 

Maine,  Sir  H.  S.,  Ancient  Law  of,  xii, 
24-25;  criticism  of  Austin's  defini- 
tion of  sovereignty,  20-21 ;  on  fusion 
of  jus  gentium  and  jus  naturale,  184. 

Malicious  prosecution,  536. 

Manor,  a  dependent  township,  253. 

Manorial  system,  253,  258. 

Mansfield,  Lord,  191-192;  definition 
of  positive  law,  522;  on  interna- 
tional law,  598. 

Manus,  in  Roman  marriages,  552- 
553. 

Maritime  laws,  189  ff . 

Mark,  the  German,  vii— viii,  17-18, 
198-200. 

Mark  moot,  the,  200,  210. 

Mar-Prelate  tracts,  351. 

Marriage,  in  ancient  Rome,  59—60; 
among  plebeians,  73 ;  ancient  cus- 
toms, 552-554 ;  decree  of  Council  of 
Trent,  554  ;  in  England,  554-555. 

Marriage  status  in  English  and  Ameri- 
can law,  557. 

Marshall,  Chief  Justice,  quoted,  441, 
464  n. ;  on  international  law,  598. 

Marshall,  William,  299. 

Martinez,  Alonzo,  Spanish  jurist,  164. 

Mary,  Queen,  reign  of,  338-345. 

Maryland,  representative  proprietary 
colony  of  North  America,  432. 


Massachusetts,  a  typical  charter  col- 
ony, 432. 

Master  and  slave,  family  rights  apply- 
ing to,  559. 

Matilda,  Queen  of  England,  260,  261. 

Maurer,  G.  L.  von,  work  of,  204  n. 

Menace,  right  of  freedom  from,  532. 

Mercenaries,  employment  of,  in  Eng- 
land, 336. 

Mercia,  kingdom  of,  226-227. 

Mexico,  United  States  of,  478-479; 
state  of  autonomy  in,  482  ;  analysis 
of  constitution  of",  483-486. 

Michigan,  Custom  of  Paris  in  force  in, 
173. 

Middlesex,  impeachment  of,  362. 

Military  tenure  system,  among  Greeks, 
50 ;  in  England,  259,  272-273 ;  abol- 
ished, 385. 

Ministerial  responsibility,  doctrine  of, 
308-309,  364,  407-411. 

Mitchell,  impeachment  of,  361. 

Model  Parliament  of  1295,  300. 

Modestinus,  Roman  jurist,  112. 

Mommsen,  edition  of  Justinian's  Digest 
by,  151. 

Mompesson,  impeachment  of,  361. 

Money  bills  originate  in  House  of 
Commons,  311,  370. 

Monk,  General,  381. 

Monmouth  rebellion,  391-392. 

Monopolies,  under  Elizabeth,  355 ;  act 
regulating,  362. 

Morton's  fork,  321  n. 

Mas  Gallicus,  169-170. 

Mas  Italicus,  169. 

Muhammedan  law,  43. 

Municipal  law,  the  term,  502-503. 

Mutiny  Act  of  1689,  English,  402-403. 

Nabuco,  Joaquim,  471  n. 

Nabuco,  Senator,  471-472. 

Natal,  Roman- Dutch  law  in,  490. 

National  debt,  British,  origin  of,  406- 
407. 

Natural  law,  Grotius's  definition  of, 
185-186.  See  Jus  naturale. 

Nature  School,  Law  of,  in  Germany, 
177-178. 

Nerva,  Roman  lawyer,  103. 

Netherlands,  British  political  model 
followed  by,  195. 

New  Model,  Cromwell 's,  376-377. 

Nicaragua,  government  of,  474,  476. 

Niebuhr,  discovery  of  lost  text  of  Gaius, 
xi,  108-109. 

Nomology,  Holland's  term,  12. 

Nonconformity,  statutes  to  punish  of- 
fense of,  348. 


672 


INDEX 


Norman  Conquest,  effects  of,  on  ad- 
ministration of  government  in  Eng- 
land, 248-252;  on  local  organiza- 
tion, 252  ff. 

Norman  law,  influence  of,  in  Scotland, 
494. 

Normans,  the,  240  ff . ;  previous  to 
Conquest  become  French  as  to  lan- 
guage and  law,  242-243 ;  lacking  in 
written  memorials  of  early  laws, 
245-246. 

Northumbria,  kingdom  of,  226-227. 

Nottingham,  Lord,  quoted,  509. 

Novels,  Post-Theodosian,  124;  enact- 
ments of  Justinian  named,  141-142. 

Oath  of  Supremacy,  326. 

Obligations,    law    of,     559-560;     five 

sources  of,  560 ;    ex   contractu,   560 ; 

quasi  ex  contractu,  563-565 ;    ex  de- 

licto,  565-566 ;   general  principles  of 

substantive  law  as  to,  569. 
Occupatio  in  international  law,  548. 
Occupation,  right  to  one's,  536  ff. 
Odgers,  on  freedom  of  speech,  533. 
Odo,  Bishop,  259. 
Officials,  accountability  of,  in  France 

and  in  England,  589. 
Oleron,  Laws  of,  190. 
Orange  Free  State,  Roman-Dutch  law 

in,  490. 
Ordeal,  trial  by,  276;    superseded  by 

petty  jury,  277. 
Ordenaqoes  Affonsinas,  469. 
Ordenaqoes  Manoelinas,  470. 
Ordenaqoes  Philippines,  470,  471,  488. 
Ordenamieiito  of  Alcald,  162. 
Ordenamiento  Real,  163. 
Order  of  Communion,  335-336. 
Ordinance,  difference  between  statute 

and,  307-308. 

Ordinances,  imperial,  at  Rome,  117. 
Ordonnance  de  la  Marine,  191. 
Ownership,  absolute  and  qualified,  549. 

Pagus,  the  Teutonic,  208  ff. 
Panama,  government  of,  474. 
Pandects  of  Justinian,  140-145. 
Papal  supremacy,  doctrine  of,  323,  608 ; 

in  England,  343. 
Papinian,  Roman  jurist,  110. 
Paraguay,  government  of,  475  ff. 
Pardessus,  191. 
Parents,  rights  and  duties  of,  558.    See 

Family. 

Paris,  Custom  of,  168,  173. 
Parliament,  first  representative,  299- 

300;   divided  into  two  houses,  303- 

304 ;  full  growth  of  powers  of,  at  end 


of  14th  century,  310 ;  the  Reforma- 
tion, of  1529,  325 ;  rights  and  powers 
of,  regarding  regencies,  331-332 ;  the 
modern  English,  413-427. 

Parliamentary  parties,  origin  of,  374. 

Parliamentary  report,  first,  299. 

Patria  potestas  in  ancient  Rome,  58-61. 

Paul,  Roman  jurist,  112,  143. 

Pavia,  law  school  at,  149. 

Pays  du  droit  ecrit  and  pays  du  droit 
coutumier,  167-168. 

Peace,  law  of,  607. 

Peace  conferences,  610. 

Peacham  prosecution,  360. 

Peerage,  estate  of,  in  England,  286— 
287. 

Penal  codes  of  Germany  and  France 
and  for  India,  593. 

Persons,  normal,  abnormal  natural, 
and  abnormal  artificial,  579-580. 

Peru,  government  of,  475. 

Peschel,  quoted,  31-32. 

Petition,  procedure  by,  307. 

Petition  of  Right,  366-367. 

Philippine  Code,  the,  470. 

Philippines,  Roman  law  in  the,  45,  164, 
165;  civil  government  in,  during 
United  States  military  occupation, 
165-166. 

(fiparpia.  the,  viii,  15,  18. 

Pinckney,  Charles,  xvii,  445. 

Pious  uses,  doctrine  of,  581-582. 

Pipe  Rolls,  274. 

Pitt,  William  (the  elder),  417-419. 

Pitt,  William  (the  younger),  419-420. 

Placaats,  491. 

Plans  out  of  which  American  Constitu- 
tion grew,  xvii,  444—446. 

Plebeians  in  regal  period  of  Rome, 
71  ff. ;  consulship  opened  to,  88. 

Poland,  legal  system  of,  188. 

Pole,  Cardinal,  341-342,  344-345. 

Politics,  modern  study  of,  begins  with 
Machiavelli,  5-6. 

Pollock,  Sir  Frederick,  work  of,  26. 

Pollock  and  Maitland,  History  of  Eng- 
lish Law  by,  xiii. 

Pomponius,  Sextus,  works  of,  106. 

Pontiffs,  college  of,  in  ancient  Rome, 
69,  98-100. 

Pope,  struggle  between  Emperor  and, 
129  ff. ;  King  John's  quarrel  with, 
289-291;  Henry  VIII.  and,  333; 
theoretical  position  of,  in  Holy  Ro- 
man Empire,  608-609. 

Popish  Plot,  389. 

Porto  Rico,  Roman  law  in,  45, 164, 165. 

Portugal,  British  representative  sys- 
tem in,  195. 


INDEX 


673 


Portuguese  law,  in  Brazil,  469 ;  funda- 
mentally Roman,  470. 

Positive  law,  Greek  definitions  of,  51 ; 
defined,  501-603,  521. 

Possession,  right  of,  543-548 ;  doctrine 
of,  in  international  law,  548. 

Post-nati,  the,  357. 

Praetor,  and  the  perpetual  edict,  508; 
English  judge  and,  510. 

Praetorian  prefect,  117-118. 

Praetor  peregrinus,  xix-xx,  33,  94  ff., 
567,  568. 

Praetor  urbanus,  33,  87  ;  supreme  judi- 
cial power  vested  in,  89-90. 

Prayer  book,  of  1552,  336-337;  low 
church,  347. 

President  of  United  States,  modeled 
after  kingship  of  George  III.,  417. 

Press,  censorship  of,  under  Elizabeth, 
353;  censorship  of,  under  Common- 
wealth and  Charles  II.,  388;  the 
right  to  freedom  of,  533. 

Priests,  marriage  of,  in  England,  335, 
340. 

Prime  minister,  the  British,  408  ff. 

Principes,  council  of,  201. 

Private  law,  survival  of  Roman,  xiv— 
xv,  151-152,  465;  strongholds  of, 
Roman,  45-46;  domain  of  Roman, 
83;  Roman,  in  Americas,  Porto 
Rico,  and  Philippines,  164-166.  487- 
488;  in  France,  166-170;  in  Code 
Napoleon,  172 ;  in  Germany,  175  ff. ; 
in  Holland,  182  ff. ;  in  Euxine  and 
Balkan  countries,  187-188;  in  Rus- 
sia, Poland,  Scandinavia,  and  Japan, 
188-189;  English  public  law  con- 
trasted with  Roman  private  law, 
193 ;  English  private  law  not  a  na- 
tive product,  196 ;  made  by  jurists 
in  early  times,  513-514 ;  the  division 
of  law  into  public  and,  523  ff .,  585 ; 
private  law  the  only  typically  per- 
fect law,  526. 

Private  person  defined,  525. 

Privy  council,  beginnings  of,  274,  311— 
312;  original  jurisdiction  of,  315; 
judicial  powers  of,  expanded,  316  ff.  ; 
becomes  court  of  star  chamber, 
318;  revived  by  Charles  II.,  387; 
in  modern  ministerial  system,  407- 
425.  See  Cabinet  and  Council. 

Prize  courts,  189. 

Proculus,  school  of,  103. 

Proof,  means  of,  in  civil  suits,  279. 

Proprietary  colonies  in  North  America, 
432. 

Provinces,  Roman,  extension  of  Roman 
law  to,  152  ff . ;  two  kinds  of,  153. 

2x 


Provisions  of  Oxford,  572-573. 

Public  law,  passing  of  Roman  and  sur- 
vival of  English,  xv,  45—46,  465 ;  dis- 
tinguished from  private  law,  523  ff., 
585 ;  consideration  of  subject  of, 
585-594.  See  English  public  law. 

Public  person  denned,  525. 

Puffendorf,  quoted,  596. 

Punjaub,  used  as  example,  20-21. 

Puritan  party,  350  ff. 

Pym,  369,  370,  371,  374. 

Quaestors  in  Roman  Republic,  76. 
Quasi-contracts,  563—565. 
Quebec,  Roman  private  law  in,  45, 174. 
Quito,  former  kingdom  and  presidency 
of,  475  n. 

Ramee,  Pierre  de  la,  169. 

Rate  system  of  taxation,  British,  406. 

Rating  of  1008,  271. 

Recognitions,  280-281. 

Recopilacidn  de  las  Indias,  468. 

Redistribution  of  Seats  Act  of  1885, 
424. 

Reformation  Parliament  of  1529,  325. 

Reform  bill  of  1832,  420  ff. 

Reform  of  English  law  courts,  577. 

Regency,  for  Henry  III.,  299 ;  for  Ed- 
ward III.  and  Richard  II.,  330-331 ; 
for  Henry  VI.,  331 ;  for  Edward  V., 
331 ;  four  principles  recognized  as 
to,  331-332. 

Regency  bill  under  Mary,  343-344. 

Reqiam  Majestatem,  treatise  on  Scotch 
Jaw,  494-495. 

Religion,  affinity  of  law  with,  506. 

Remedial  law,  English,  570  ff . 

Renaissance,  the  English,  321  ff. ;  new 
conception  of  liberty  born  of,  353— 
355. 

Report,  first  parliamentary,  299. 

Representation  of  the  People  Act  of 
1867,  423  ;  of  1884,  424. 

Representative  government,  shire 
moots  training  schools  in.  237. 

Representative  principle,  lacking  in 
national  government  of  Teutonic 
Britain,  221-222. 

Representative  system,  survival  and 
growth  of,  in  England,  193-194; 
copied  in  United  States,  194-195; 
spread  of  principle  from  England  to 
all  parts  of  world,  196-197;  first 
full  development  of,  Parliament  of 
1295,  300;  two  epochs  of,  302;  col- 
lapse of  immature,  312-313;  re- 
form of  English,  418  ff . ;  Reform  bill 
of  1832,  420  ff. 


674 


INDEX 


Requisition,  a  man's  right  to,  533 ;  a 
state's  right  to,  601. 

Requisition  system,  442-443. 

Response,  of  pontifical  college,  98-99 ; 
reduced  to  compendia,  101. 

Responsa  prudentium,  91. 

Revolution  of  1688,  English,  382,  383, 
389,  391,  397-407. 

Rex,  the  Roman,  54—55. 

Rhode  Island,  charter  of,  439. 

Richard  II.,  regency  for,  330-331. 

Rights,  legal,  denned,  521,  530  ff . ; 
moral  and  legal,  distinguished,  522 ; 
four  elements  of  legal,  531 ;  analysis 
of  legal,  578-579. 

Riot  act  of  Edward  VI.,  336. 

Roccus,  Neapolitan  lawyer,  192  n. 

Roger  of  Salisbury,  Bishop,  260. 

Rolle's  case,  367. 

Roman-Dutch  jurists,  492-494. 

Roman-Dutch  law,  in  South  Africa, 
Ceylon,  and  British  Guiana,  489- 
490;  origin  and  nature  of,  490-492. 

Roman  law,  vulgarized  by  contact  with 
German  law,  134-135 ;  extension  of, 
to  the  provinces,  152  ff.  See  Public 
law  and  Private  law. 

Romano-Barbarian  codes,  137. 

Roman  treatises  and  English  case  law 
contrasted,  110-111. 

Rome,  origin  and  growth  as  a  city- 
state,  16-17 ;  jus  civile  and  jus  gen- 
tium at,  33  ff . ;  beginnings  of  law  of, 
52  ff. ;  constitution  in  regal  period, 
52 ;  as  an  independent  city-state, 
53 ;  the  curiae,  53-54 ;  private  law 
of,  in  regal  period,  57  ff. ;  crimes, 
offenses,  and  civil  injuries,  67  ff. ; 
college  of  pontiffs,  69 ;  Servian  re- 
forms, 69-71 ;  the  Republic  of,  75  ff . ; 
private  law  in,  according  to  provi- 
sions of  the  Twelve  Tables,  83-84 ; 
legislation  under  the  Empire,  87 ; 
law  literature  of,  102-113;  private 
law  of,  only,  survives,  151-152. 

Rotation  of  crops,  Teutonic,  199. 

Rouen,  colony  at,  240-241. 

Roumania,  Roman  private  law  in, 
187-188. 

Rubrics  relating  to  shipping,  in  Roman 
civil  law,  189. 

Rump  Parliament,  378-379. 

Russell,  Lord  John,  420-421. 

Russia,  legal  system  of,  188. 

Sabinus,  school  of  law  of,  103,  143. 
St.  Alban's,  council  at,  290. 
St.  Edmund's,  meeting  of  barons  at, 
291. 


St.  John,  Oliver,  360. 

St.  Paul's,  council  at,  290-291. 

St.  Pierre,  Abbe,  610. 

Salic  law,  133-135,  160,  616. 

Salisbury,  Gemot  of,  258. 

Salvador,  government  of,  474. 

San  Mateo  County  case,  460. 

Sarsfield,  Dr.  Velez,  471. 

Savigny,  works  of,  xi— xii,  23-24,  178 ; 
definition  of  law,  29;  summary  of 
capitularies  of  Charles  the  Great, 
135 ;  protest  of,  against  codification, 
178 ;  quoted  on  law,  519 ;  on  the 
animus  domini,  546 ;  analysis  of  con- 
tract, 561. 

Sawtre's  case,  334. 

Scaevola,  Q.  Cervidius,  109-110,  144. 

Scaevola,  Q.  Mucius,  100,  143. 

Scandinavia,  legal  system  in,  188; 
founders  of  Norman  duchy  from, 
240. 

Scholia  to  the  Basilica,  148. 

Scotland,  Roman  law  in,  45—46,  494— 
497. 

Scutage,  shield  money,  267,  272,  294. 

Seabra,  Viscount  de,  471. 

Sea  laws,  189  ff. 

Secretary  of  state,  origin  of,  352-353. 

Seduction,  English  action  of,  558. 

Servia,  Roman  private  law  in,  187. 

Settlement,  Act  of  (1701),  403. 

Sheldonian  compact  of  1664,  304. 

Ship  money,  271,  365-366,  368,  372- 
373. 

Shipping,  rubrics  of  Roman  law  relat- 
ing to,  189. 

Shire,  district  arising  from  union  of 
townships,  230;  the  ancient  and 
modern,  230-231 ;  officers  of  the, 
238. 

Shire  court,  under  "William  the  Con- 
queror, 253-254. 

Shire  moot,  the,  221,  237. 

Short  Parliament,  369-370. 

Sicily,  lex  of,  155. 

Siete  Partidas,  161-162,  468,  488. 

Six  Articles,  Statute  of,  327 ;  repeal  of, 
333. 

Skene,  Sir  John,  496. 

Slander,  533. 

Slaves  in  Britain,  212-213;  family 
rights  applying  to  relation  of  masters 
and,  559. 

Smithfield  executions,  344. 

Social  Contract,  Hobbes's,  7,  398-399. 

Sohm,  Rudolph,  outline  by,  of  general 
code  for  German  Empire,  180. 

Solorzano,  Pereira,  164. 

Somers,  John,  399. 


INDEX 


675 


Somerset,  Duke  of,  protector  during 
minority  of  Edward  VI.,  332. 

Sommersett's  case,  522. 

South  Africa,  Roman-Dutch  law  in, 
489. 

Sovereign,  legal  rights  and  duties  of, 
526-527. 

Sovereign  states,  five  classes  of,  602; 
part  sovereign  states,  606. 

Sovereignty,  Bodin's  definition  of,  7  ; 
Hobbes's  definition,  8;  Holland's 
definition,  11;  tribal,  among  Teu- 
tonic races,  18-19,  133;  transition 
from  tribal  to  territorial,  19-20 ;  defi- 
nition of,  by  Bodin,  Hobbes,  and 
Austin,  20 ;  tribal,  in  early  Britain, 
216 ;  in  Great  Britain  now  vested  in 
electorate,  414,  425 ;  of  the  state,  in- 
ternal and  external,  503-504,  598- 
599,  600-601. 

Spain,  impression  made  by  Teutons 
upon,  134;  Roman  private  law  in, 
159  ff . ;  codes  of,  163-164 ;  Roman 
law  transmitted  to  the  Americas 
from,  164,  466-469 ;  British  political 
model  followed  by,  195. 

Speaker  of  House  of  Commons,  the 
first,  304. 

Speech,  freedom  of,  under  William  and 
Mary,  401 ;  the  right  to,  533. 

Spencer,  Herbert,  on  law,  520. 

Stanhope  pamphlets,  419. 

Star  chamber,  court  of,  310,  317,  318, 
353 ;  abolished,  373. 

State,  basis  of  modern  conception  of, 
as  nation,  17 ;  development  of  mod- 
ern European  form,  19-20;  Teu- 
tonic, formed  by  union  of  hundreds, 
201 ;  definition  of  the,  504. 

State  assembly,  Teutonic,  201. 

States  of  United  States,  suits  between, 
527. 

Status,  in  Roman  law,  579. 

Statute,  difference  between  ordinance 
and,  307-308. 

Statute  Law  Commission,  English,  517. 

Statutes,  Roman  and  English  con- 
trasted, 516;  personal,  real,  and 
mixed,  619. 

Stoic  philosophy,  34-35,  100, 185-187. 

Story,  on  conflict  of  laws,  613  n., 
621. 

Strafford,  earl  of,  369;  impeachment 
of,  372. 

Subinfeudation,  293. 

Substantive  criminal  law,  593-594. 

Substantive  law,  523,  529,  578. 

Substantive  law  of  nations,  607. 

Substantive  private  law,  578-582. 


Succession,  parliamentary  settlement 
of  (1689),  401. 

Succession  acts  of  Henry  VIII.,  326, 
329-330. 

Summons,  practice  of,  270,  287. 

Supplies,  commons'  right  to  appropri- 
ate, 308. 

Supremacy,  Acts  of,  326,  341,  346,  351. 

Supreme  Court  of  United  States,  laws 
made  by,  512 ;  development  of  juris- 
diction of,  513 ;  suits  between  states 
before,  527. 

Synod  of  Whitby,  223. 

Syrio-Roman  Book  of  Law,  124. 

Talliage,  271,  272. 

Taxation,  English,  begins  with  Dane- 
geld,  236 ;  of  land,  272,  406 ;  of  per- 
sonal property,  271-273 ;  and  repre- 
sentation, 273  ;  provisions  of  Great 
Charter  relating  to,  294;  Parlia- 
ment's right  of,  settled,  301-302; 
participation  of  commons  in,  305  ff . ; 
under  Henry  VII.,  321 ;  under  King 
James,  360;  under  Charles  I.,  363- 
365  ;  under  James  II.,  391  ff . ;  under 
William  and  Mary,  405  ff. 

Test  Act  of  1673,  387,  392. 

Teutonic  federations,  17-18,  442. 

Teutonic  invasions,  133  ff . ;  national 
life  of  English  people  begins  with, 
197 ;  date  of,  in  Britain,  204-209. 

Teutonic  law  in  Britain,  210. 

Thegnhood,  217-218,  238. 

Theodore  of  Tarsus  in  Britain,  224. 

Theodosian  Code,  124. 

Theology,  affinity  of  law  with,  506. 

Theophrastus,  legal  treatise  by,  48. 

Thirty-nine  Articles,  337. 

Thomas  v.  Sorrel,  case  of,  393. 

"Thorough,"  policy  of,  369. 

Tocqueville,  ix ;  quoted  on  American 
Constitution,  xvii,  443—444. 

Toleration  Act  of  1689,  404-405. 

Tories,  party  called,  374,  389. 

Tort,  difference  between  a  crime  and 
a,  525-526. 

Torts,  origin  of  modern  law  of,  566. 

Township,  the  Old-English,  253. 

Townships  in  northern  colonies  and 
states  of  America,  430. 

Tractatus  de  Legibus  et  Consuetudinibus 
Regni  Angliae,  275. 

Transcendental  theory  of  origin  of  in- 
ternational law,  595-597. 

Treasons  acts,  334,  340. 

Treaty-making  power  in  British  Em- 
pire, 604. 

Trial  by  battle,  254-255,  278,  571. 


676 


INDEX 


Trials  under  provisions  of  Great  Char- 
ter, 296-298.  See  Jury. 

Tribonian,  compiler  of  Digest  of  Jus- 
tinian, 141,  145. 

Tribunes,  Roman,  78. 

Triennial  Bills,  373,  377,  402. 

Trinoda  necessitas,  219. 

Tudor  subsidy,  405-406. 

Tun  moots,  210,  221. 

Tutors,  rights  and  duties  of,  558. 

Twelve  Tables,  history  of  the,  80-81 ; 
provisions  of,  81  ff. ;  effects  of  codi- 
fication of  laws,  85  ff. ;  interpreta- 
tions of,  by  jurisconsults,  91. 

Ulpian,  legal  works,  111-112, 143,  146; 
discovery  of  commentary  on,  125. 

Uniformity,  Act  of,  335 ;  Second  Act 
of,  336^337;  Acts  of,  repealed  by 
Mary,  340 ;  new  Act  of,  under  Eliza- 
beth, 347. 

Unions  of  states,  personal,  602—603 ; 
real,  603;  incorporate,  603-604; 
federal,  604. 

United  States,  English  representative 
system  reproduced  in,  194-195 ;  ad- 
ministrative law  non-existent,  590 : 
Constitution  of,  see  Constitution. 

Uruguay,  government  of,  474—475, 
476-477. 

Usage,  law  originated  in,  505;  state 
recognition  of  a,  518. 

Usus  Modernus  Pandectarum,  177. 

Utrecht,  law  school  at,  492. 

Vacarius,  256. 

Valentinian  Law  of  Citations,  122-123. 

Valin,  191. 

Vattel,   quoted  on  international  law, 

596. 
Venezuela,  Republic  of,  474,  475  n. ; 

United  States  of,  481 ;    government 

of,  481. 
Vicus,    Teutonic    village    community, 

198. 
Village    community,    as    unit    of    the 

state,  vii-ix,  14-15;   the  Greek,  vii, 

14,    18;     Roman,    vii,    14,    18,    52; 

Teutonic,  17-18, 198-200 ;  in  Britain 

represented   by  the   township,   204, 

209;    structure  of  Teutonic  form  in 

Britain,  211-214. 
Virginia,    as    representative   of    royal 

colonies  in  North  America,  431. 
Virginia  plan,  the,  445. 
Voet,  John,  493;    on  conflict  of  laws, 

619-620. 

Voet,  Paul,  493 ;   De  statute,  etc.,  620. 
Voigt,  Moriz,  cited,  65,  68,  80,  99  ff. 


Von  Bar,  quoted,  8  n. 
Voting  in  ancient  Rome,  115. 

Waitz,  history  by,  204  n. 

Wallingford,  treaty  of,  261-262. 

Walpole,  Horace,  first  prime  minister 
in  modern  sense,  416. 

War,  law  of,  607. 

Warwick,  government  of,  336  ff. 

Waters,  right  to  use  of  navigable,  536. 

Webster,  Pelatiah,  the  epoch-making 
"Dissertation"  of,  xvii-xix,  446  ff . ; 
sketch  of,  449;  financial  studies  of, 
449—450;  quoted  on  supreme  power 
of  taxation,  450 ;  on  further  matters 
of  government,  450  ff. ;  tribute  to, 
456-457;  text  of  "Dissertation," 
629-662. 

Wedmore,  Peace  of,  228. 

Wentworth,  Sir  Thomas,  366 ;  becomes 
earl  of  Strafford,  369. 

Wessex,  kingdom  of,  226-227. 

Westminster,  common  pleas  at,  295; 
becomes  seat  of  government,  303. 

Whigs,  party  called,  374,  389. 

Whitgift,  Archbishop,  351. 

Wife,  position  of  the,  in  ancient  Rome, 
59-60;  position  of,  under  ancient 
and  modern  laws,  552-557. 

Wilkes,  John,  419. 

William  the  Conqueror,  246  ff. ;  death 
of,  and  successors,  258-259. 

William  IV.,  and  Reform  bill  of  1832, 
421-422. 

William  and  Mary,  accession  of,  401. 

William  the  Red,  258-259. 

Wills,  in  ancient  Rome,  63;  Henry 
VIII. 's  Act  concerning  Uses  and, 
328. 

Winckler,  Hugo,  26. 

Wisbuy,  Laws  of,  190. 

Witan,  the,  235-236;  recognition  by 
William  the  Conqueror  of  right  to 
elect  king,  250;  change  in  compo- 
sition of,  under  William,  250-251. 

Wite  in  Old-English  law,  592. 

Witenagemot,  the,  221,  235  ff. 

Wolsey,  Cardinal,  324. 

Writ  of  praecipe,  under  provisions  of 
Great  Charter,  298. 

Writs  in  England,  571  ff. 

York,   an   ecclesiastical   division,    225, 

285 ;  convocation  of,  257. 
York,  House  of,  308. 

Zakonik,  Servia's  Book  of  Laws,  187. 
Zeuss,  cited,  18. 
Zoller,  cited,  75. 


Popular  Participation 
In  Law  Making 

By  CHARLES  SUMNER  LOBINGIER,  Professor  of  Law  in  the 
University  of  Nebraska. 

In  this  work  the  author  deals  with  the  subject  of  constitutional  law 
making  from  the  popular  or  democratic  point  of  view.  The  political 
development  of  the  United  States  in  very  recent  years  has  awakened  a 
fresh  interest  in  the  fundamental  institutions  and  processes  of  our  con- 
stitutional system.  For  the  study  of  these  institutions  Judge  Lobingier 
has  brought  together  in  this  volume  a  great  mass  of  valuable  material. 

Ready  shortly 

The  Principles  of  Anthropology  and  Sociology 
in  their  Relations  to  Criminal  Procedure 

By  MAURICE  PARMELEE.  A  discussion  of  criminal  procedure 
as  a  social  agency  whereby  the  criminal  class  is  separated  from  the 
rest  of  society,  and  by  means  of  which  the  treatment  to  be  given  this 
class  is  in  part  determined. 

Citizens  Library.     Cloth,  leather  back,  $1.25  net;  by  mail,  $1.36 
Outlines  of  Criminal  Law 

By  COURTNEY  STANHOPE  KENNY,  University  of  Cambridge. 
A  standard  work  in  England,  and  so  valuable  that  James  H.  Webb  of 
the  law  department  of  Yale  University  has  revised  and  adapted  it  for 
the  use  of  American  scholars. 

Cloth,  8vo,  $3.00  net 

International  Civil  and 
Commercial  Law 

As  founded  upon  Theory,  Legislation,  and  Practice.  By  F.  MEILI, 
University  of  Zurich.  Translated  and  Supplemented  by  ARTHUR 
H.  KUHN,  Member  of  the  New  York  Bar. 

Cloth,  8vo,  $3.00  net 


PUBLISHED  BY 

THE   MACMILLAN   COMPANY 

64-66  FIFTH  AVENUE,  NEW  TOEK 


INDISPENSABLE  TO  ANY  HISTORICAL  STUDY  OF 
AMERICAN  JURISPRUDENCE 


Select   Charters   and   Other  Documents   Illustrative   of 
American  History,  J60J-J775 

Cloth,  I2mo,  401  pages,  $2.00  net 

Select  Documents  Illustrative  of  the  History  of  the  United 
States,  J776-J86J 

Cloth,  ismo,  465  pages,  $2.25  net 

Select  Statutes  and  Other  Documents  Illustrative  of  the 
History  of  the  United  States,  J86  J-J898 

Cloth,  i2mo,  442  pages,  $2.00  net 

EDITED   WITH  NOTES 

BY  WILLIAM    MACDONALD 
Professor  of  History  in  Brown  University 

The  demand  for  original  material  illustrative  of  United  States  History 
is  met  in  these  three  volumes,  which  cover  thoroughly  the  documentary  his- 
tory of  our  country  from  the  first  Virginia  charter  to  the  treaty  of  Paris  of  1898. 
Many  of  the  documents  have  heretofore  been  accessible  only  to  those  within 
reach  of  large  libraries.  The  utmost  care  has  been  exercised  in  selecting 
authentic  texts  and  in  reproducing  them  exactly.  To  each  document  is  pre- 
fixed a  brief  introduction,  tracing  in  detail  its  legislative  and  diplomatic  his- 
tory, and  a  select  bibliography. 


Abridged  from  the  above 

Documentary  Source-book  of  American  History 

BY  PROFESSOR  WILLIAM    MACDONALD 
Brown  University 

This  edition  is  intended  for  a  text-book  or  work  of  reference  where  there  is 
need  of  a  compact  and  accessible  collection  of  illustrative  American  documents 
covering  both  the  colonial  and  constitutional  periods  of  American  history  in 
one  volume. 

With  Notes  and  Bibliographies.     Cloth,  $1.75  net 


PUBLISHED  BY 

THE    MACMILLAN    COMPANY 

64-66  FIFTH  AVENUE,  NEW  YOEK 


"A  work  upon  which  we  can  unreservedly 

congratulate  the  author  and  his  country." 

—  The  Athenaeum,  London. 


The  Government 
of  England 


BY  A.    LAWRENCE    LOWELL 

Professor  of  the  Science  of  Government  in  Harvard  University 
Author  of  "  Colonial  Civil  Service,"  etc. 

In  two  -volumes.     Bound  in  the  style  of  Bryce's 
"American  Commonwealth."     Cloth,  8vo,  $4  net 

The  New  York  Sun  calls  it :  — 

"  The  remarkable  work  which  American  readers,  including  even  those  who 
suppose  themselves  to  be  pretty  well  informed,  will  find  indispensable  ...  it 
deserves  an  honored  place  in  every  public  and  private  library  in  the  American 
Republic."  — M.W.H. 

"  Professor  Lowell's  book  will  be  found  by  American  readers  to  be  the  most 
complete  and  informing  presentation  of  its  subject  that  has  ever  fallen  in  their 
way.  .  .  .  There  is  no  risk  in  saying  that  it  is  the  most  important  and  valu- 
able study  in  government  and  politics  which  has  been  issued  since  James 
Bryce's  'American  Commonwealth,1  and  perhaps  also  the  greatest  work  of 
this  character  produced  by  an  American  scholar."  —  Philadelphia  Public 
Ledger. 

"  It  is  the  crowning  merit  of  the  book  that  it  is,  like  Mr.  Bryce's,  emphati- 
cally a  readable  work.  It  is  not  impossible  that  it  will  come  to  be  recognized 
as  the  greatest  work  in  this  field  that  has  ever  been  produced  by  an  American 
scholar."  —  Piltsburg  Post. 

"  The  comprehensiveness  and  range  of  Mr.  Lowell's  work  is  one  of  the  rea- 
sons for  the  unique  place  of  his  '  Government  of  England '  —  for  its  place  in 
a  class  by  itself,  with  no  other  books  either  by  British  or  non-British  authors 
to  which  it  can  be  compared.  Another  reason  is  the  insight,  which  character- 
izes it  throughout,  into  the  spirit  in  which  Parliament  and  the  other  representa- 
tive institutions  of  England  are  worked,  and  the  accuracy  which  so  generally 
characterizes  definite  statements ;  all  contribute  to  make  it  of  the  highest  per- 
manent value  to  students  of  political  science  the  world  over."  —  EDWARD 
PORRITT  in  The  Forum. 


PUBLISHED    BY 


THE   MACMILLAN   COMPANY 

64-66  FIFTH  AVENUE,  NEW  YOEK 


The  United  States  as  a 
World  Power 

BY  ARCHIBALD   GARY   COOLIDGE,  PH.D. 

Harvard  University 

Cloth,  8vo,  $2.00  net;  by  mail,  $2.14 

The  expression  "world  power"  represents  a  conception  of 
recent  origin,  somewhat  uncertain  in  its  limits,  yet  pretty  defi- 
nite in  meaning  as  describing  powers  which  are  directly  inter- 
ested in  all  parts  of  the  world  and  whose  voices  must  be  listened 
to  everywhere.  The  states  which  can  claim  the  title  without 
dispute  are  five  in  number :  England,  Russia,  Greater  France, 
the  United  States,  and  Greater  Germany.  All  are  ruled  by  peo- 
ple of  European  blood,  but  in  two  of  them  the  dominant  whites  at 
home  are  outnumbered  by  the  colored  inhabitants  of  the  colo- 
nies. "If  then,"  says  Dr.  Coolidge,  " the  political  destinies  of 
the  globe  are  to  be  determined  more  and  more  by  a  few  great 
nations,  it  is  desirable  that  we  should  know  as  much  as  possible 
about  them,  and  should  try  to  understand  the  circumstances 
which  determine  their  relations  with  one  another.  The  United 
States  may  be  a  world  in  itself,  but  it  is  also  a  part  of  a  larger 
world.  There  is  no  doubt  that  its  power  for  good  and  for  evil 
is  very  great.  How  that  power  is  to  be  used  is  of  consequence 
to  all  humanity." 

The  material  of  which  the  book  is  constructed  was  originally 
gathered  for  use  in  the  lectures  delivered  by  the  author  at  the 
Sorbonne  as  Harvard  lecturer  on  the  Hyde  foundation.  Since 
then  it  has  been  entirely  recast  and  retested,  but  still  retains  its 
broadly  international  and  neutral  attitude.  It  is  therefore  more 
likely  to  give  an  unbiased  and  rightly  proportioned  knowledge 
of  the  situation  than  if  its  view  were  specifically  American. 

No  work  covers  this  broad  field,  full  of  controverted  points, 
so  fully,  clearly,  and  interestingly,  as  does  this  book. 


PUBLISHED  BY 

THE    MACMILLAN   COMPANY 

64-66  FIFTH  AVENUE,  NEW  YOBK 


This  book  is  DUE  on  the  last  date  stamped  below 


UNIVERSITY  «*  CALIFORNIA 


LIBRARY 


